Portions of this unabridged review originally published in
2006, Volume 2, JOURNAL OF ANIMAL LAW, 49-66.

This is a book
review of Speciesism by Joan Dunayer (Derwood, Maryland:
Ryce Publishing, 2004). It is written in an academic style. For an
easy to understand, non-academic summary of this review, read the
Introduction and Conclusion
below. For a detailed justification of the claims made in the Introduction
and Conclusion, read the entire review.

Speciesism is
a book that, for the most part, makes highly progressive, radical and laudable
claims regarding animal rights theory and practice. It is unfortunate that its
author, Joan Dunayer, not only fails to argue for many of these claims but also
borrows them from the meticulously argued-for conclusions of another author;
Gary L. Francione. After basing the majority of her work on Francione’s[1],
it is astonishing that Dunayer proceeds to mischaracterize and dispute some
of Francione’s conclusions, claiming that they contradict the animal rights
theory that Francione developed in the first place, the very theory that Dunayer
appropriates without providing adequate citation. These are the serious charges
that I will now establish. Doing so is of the utmost relevance to the increasingly
prominent fields of non-human animal law, philosophy and political advocacy.
In a world in which non-human animal advocates compare the continuing U.S. “war
on terrorism” in Iraq with the consumption of animal products[2]
and state legislatures introduce bills that define “animal rights terrorist
organizations” as two or more individuals who “support” any action that
is intended to “deter” anyone from participating in any activity involving
animals[3] – all while animal rights law is being taught at prestigious
universities[4] – the need for
clarity is paramount. Francione offers this clarity while Dunayer’s Speciesism
obscures it.[5]

Dunayer defines “speciesism” as “a failure,
in attitude or practice, to accord any nonhuman being equal consideration
and respect.”[6] Although the definition itself is highly questionable[7],
it is noteworthy that Dunayer grounds it by arguing that it is not immoral
to kill or otherwise harm human animals for the reason that they possess
abstract reason, language and so on—and this is so because it is immoral and
illegal to kill or otherwise harm humans who lack those qualities.[8]
This argument begs the question; the alleged truth of its conclusion is contained
within its undefended premises. That is, it is logically equivalent to the claim
that killing or otherwise harming human animals (who may or may not possess
abstract reason and so on) is immoral because it is immoral to kill or otherwise
harm non-human animals (who do not possess abstract reason and so on).
While Dunayer’s claim may be true, she does not support it with valid argument.
Dunayer goes on to argue that killing or depriving any human or non-human animal
of well-being (except in emergencies) is immoral because, as sentient beings,
harming them causes them to suffer and killing them deprives them of future
(sense) experiences.[9] Again, without further argument[10], this is a non-sequitur. Thus, Dunayer’s argument
for giving (sentient) human and non-human animals full and equal moral consideration
– and her definition of speciesism that is grounded in this argument – are inadequate.
In fact, this argument of Dunayer’s is a version of the classic “argument from
marginal cases,” which has been refuted.[11] Conversely, in Francione’s Introduction
to Animal Rights, a unique, well argued moral theory is presented – intended
for general audiences – that is grounded in principles that most everyone already
accepts.[12]

Dunayer examines and rejects several purported justifications
for speciesism. Some of these include religious beliefs, lack of or diminished
sentience, lack of self-awareness, lack of moral agency and lack of or diminished
inherent value. Francione addresses all of these.

In 2004, Dunayer notes that the Christian Bible
condones the exploitation of non-human animals[13]
and, not only do many Christians accept this view, but at least some Christians
also hold the additional view that non-human animals lack souls.[14]
Dunayer counters that these claims are not argued for with evidence, reasoning
or logic[15] and asserts that
possessing a soul is irrelevant to having basic rights, or to not being subjected
to suffering and death.[16] She further notes that Biblical
claims that endorse the slavery of human animals and sexism are likewise not
argued for.[17] Moreover, Dunayer notes that
many human animals who believe that non-human animals exist for their use also
reject the theory of evolution because that theory indicates a biological kinship
between human and non-human animals—a fact which conveys moral responsibility
in the minds of some.[18] Dunayer
counters by noting that there is a wealth of evidence supporting evolutionary
theory.[19] Dunayer does all of this without citing Francione’s
work.

In 2000, Francione argued that one cannot consistently
both claim that exploiting non-human animals exclusively as resources
is justified due to the Judeo-Christian tradition (the Book of Genesis in particular)
– or is justified due to the modern theory of private property found in current
English and U.S. law (developed by John Locke) that is based upon that Biblical
tradition – and claim that non-human animals have any moral significance
whatsoever.[20] This insight rests on a previous
argument of Francione’s[21]
briefly summarized as follows: “We claim to accord animals some moral status
through the humane treatment principle, but because we regard animals as property,
the balance of interests required by the humane treatment principle is never
realized through animal welfare laws [or other suggested policies for animal
exploitation rooted in the Biblical tradition]”.[22]
Thus, Francione advises that we reject the instrumental use of non-human animals
in order to avoid this contradictory behavior.[23]
Moreover, Francione argued that although Christian theology maintains that non-human
animals do not have immortal souls and this (in addition to the Book of Genesis,
the New Testament’s account of Jesus’ indifference towards non-human animals,
St. Thomas Aquinas’ use of these accounts and the philosophy of Locke that followed)
supposedly justifies using them exclusively as resources[24], this view not only assumes that God exists[25] but also presupposes “that God literally created
humans as a finished product (rather than creating matter that evolved into
human and other life forms); that God endowed only humans with souls; that the
possession of a soul is a necessary prerequisite for possessing any moral significance;
and that God created [non-human] animals exclusively as means to our ends. If
we do not accept a very literal creation story, then Locke’s justification for
the status of animals as property has no basis.”[26] Francione also argued that one
cannot consistently maintain that the use of animals exclusively as resources
is justified due to Biblical passages and reject other Biblical passages that
condone human slavery and sexism, as well as require capital punishment for
the purported crimes of reviling one’s parents, trespassing on sacred ground,
homosexuality, witchcraft and prostitution.[27] Francione notes that there is a lack of explanation as to why
the Biblical passages supporting the oppression of non-human animals should
be accepted while those passages supporting the oppression of human animals
should be rejected.[28] From
this paragraph and the preceding one, it should be clear that the only difference
between what Francione concludes in 2000 and what Dunayer rehashes without citation
in 2004 is that the former claims are argued for while the latter are merely
blank, unsubstantiated assertions.

In 2004, Dunayer states that a “someone” is
a sentient, thinking, feeling individual with unique life experiences
whereas a “something” is not.[29] She rightly criticizes speciesists for characterizing
non-human animals as things.[30]
Dunayer also goes into great detail describing false claims that non-human animals
do not feel pain and refutes these claims with scientific evidence.[31]
Moreover, she states “Nonhumans act as if they feel pain.”[32]
and rhetorically[33] suggests that their behavior, memory and learning could not
be explained if they lacked sentience and conscious experience.[34] Dunayer then describes the mental
suffering of non-human animals.[35]
Again, Dunayer does all of this without citing Francione. Francione made all
of these observations and conclusions four years earlier.[36]
The difference is that he did so within the context of a larger argument that
relates sentience and self-awareness to interests and relates interests to an
argued for principle of equal consideration of interests; namely, the principle
that similar interests should be treated similarly.[37]

Dunayer cites Peter Singer’s contention that
the principle of equal consideration of interests applies to all sentient beings.[38]
She objects, however, “that Singer gives all sentient beings equal consideration
only with regard to suffering—not with regard to basic rights, including a right
to life.”[39] Dunayer adds that Singer only discusses rights
when speaking of human and non-human great apes and perhaps a few other species.[40]
She objects that all sentient beings should have basic rights and deserve ‘equal
consideration’.[41] Dunayer also takes note of and opposes Singer’s
stance that it is morally acceptable to breed and kill some non-human mammalian
and all non-mammalian animals if they live pleasantly, die painlessly and are
replaced with new individuals after being killed for food.[42] Dunayer responds by arguing
that since murdering particular individuals wrongs those individuals, they are
not compensated when replaced with new, different individuals; the compensation
of murder victims is impossible.[43]

Contrary to Dunayer’s analysis, as stated by
Singer and observed by Francione, Singer is not a rights advocate for any
human or non-human animals, regardless of their being great apes or of any other
classification.[44] Rather, Francione correctly observes that Singer
applies utilitarianism – never rights theory – to all sentient beings but nevertheless
uses the language of rights merely for “convenient political shorthand” and
“thirty-second TVA news clips.”[45]
Moreover, like Jeremy Bentham, Singer may accept legal (not moral) rights, but
only as “measures of government” or “laws or dictates” that are consistent with
the act utilitarian principle of maximizing good consequences for particular
actions[46], weather these are described in terms of happiness (Bentham)
or interests and preferences (Singer). Under act utilitarianism, general laws
protecting legal rights may be used on a case-by-case basis for convenience
but such laws must always be overridden in cases where their violation would
maximize good moral consequences. As such, any rights that act utilitarians
such as Bentham and Singer speak of are always legal (never moral) and are more
aptly described as convenient, temporary and provisional means to maximize
good moral consequences for particular actions. Thus, Dunayer’s charge that
Singer allocates rights inconsistently is moot, as Singer does not allocate
rights at all except insofar that his use of rights language serves his
rhetorical purposes.

Moreover, Dunayer’s objection that Singer does not apply ‘equal
consideration’ to all animals with regard to their lives fails to address
the subtleties of Singer’s questionable argument. According to Singer,
the principle of equal consideration of interests applies to all sentient beings,
but many sentient beings do not have an interest in continued life because they
lack future desires or a continuous mental existence. Thus, Singer claims that
the principle of equal consideration of interests is applied to all animals,
but not all animals have the same interests. The fact that Singer holds the
questionable view that certain animals lack certain interests does not entail
that his view involves a failure to apply the principle of equal consideration
of interests to all animals, or that he is applying the principle inconsistently.
Rather, Singer applies this principle to all animals for all of the interests
that he contends they have. Thus, Dunayer’s claim that Singer does not apply
the principle of equal consideration to all animals with regard to their lives
is misleading. Singer applies the principle consistently and the principle necessarily
only applies to the interests that beings actually have. Dunayer discusses
a second, and different, point when she goes on to object that all animals do,
in fact, have future desires and an interest in continued life, as I discuss
below.

Like Dunayer in 2004, Francione in 1996 and
2000 discusses Singer’s argument that since many non-human animals supposedly
do not possess desires for the future or continuous mental existences, it is
justifiable to painlessly kill them and any harm that this entails to non-human
animals is offset by breeding new animals to replace the ones killed.[47]
Francione notes that, for Singer, this argument only applies to animals who
have lead pleasant lives, as Singer holds that all animals have an interest
in not suffering regardless of their mental makeup.[48] Moreover, Francione observes
Singer’s contention that self-awareness, future-oriented thoughts, hopes and
aspirations, meaningful relationships with others and other characteristics
are relevant to the morality of killing.[49]

Francione objects to Singer’s view that death
does not harm certain individual sentient beings by arguing that being sentient
logically implies having an interest in continued life.[50]
That is, sentience entails an experiential welfare that includes the duration
of one’s life and capacity to have life experiences.[51]
Moreover, Francione provides persuasive arguments that sentience is a means
to staying alive (not an end in itself) and that pain cannot exist without a
conscious self who perceives that pain.[52] “Just as humans will often endure
excruciating pain in order to remain alive, [non-human] animals will often not
only endure but inflict on themselves excruciating pain—as when gnawing off
a paw caught in a trap—in order to live.”[53]
“… if an animal struggles against a threat to her life, the animal does prefer
or desire to remain alive.”[54] Francione draws on scientific evidence to show
that non-human animal learning and behavior cannot be explained unless they
are self-aware.[55] He argues
non-human animal self-awareness does not require self-recognition in a mirror,
as many non-human animals recognize themselves in other ways—as supported by
evidence.[56] Francione further cites direct scientific evidence
that all non-human animals possess self-awareness and awareness of the future,
again as verified by non-human animal behavior.[57] Francione relates all of this to the morally
relevant interests that non-human animals possess.[58] Francione also argues that non-human animals who have been killed
cannot be replaced because they have individual, distinct personalities.[59]
He objects to Singer’s view that certain human animals, such as human newborns
and humans who are mentally challenged, do not have an interest in continued
life because they supposedly lack self-awareness.[60] Francione notes Singer’s conclusion
that these humans may be painlessly killed for the purposes of others and replaced
with new humans.[61] Francione
rejects this view of Singer’s for reasons already discussed.[62]
Francione goes on to critique Singer’s application of the principle of equal
consideration of interests in detail.[63]

Again, Dunayer contends that Singer is a human
and non-human great ape rights advocate, and perhaps also a rights advocate
for some other mammalian animals, but is a utilitarian for most animals.[64]
She charges Singer of inconsistency because he fails to maintain that it is
morally good to kill relatively unhappy “normal” human animals and replace them
with others who will probably have happy lives but nevertheless does maintain
that position with respect to most other animals.[65] Dunayer says that Singer takes
this position because he holds that most animals lack self-awareness, desires
about the future, continuity of conscious states over time and expectations.[66] Again, Dunayer contests this view by noting
that it runs contrary to scientific evidence, and by rhetorically suggesting
that the behavior of non-human animals could not be explained if they lacked
the aforementioned qualities.[67]
She supports this suggestion with several examples of non-human animal behavior.[68] Echoing (without referencing) Francione’s discussion of experiential
welfare and a conscious self being logically prior to sentience, Dunayer adds
that in the unlikely instance of their being an animal who is sentient but who
lacks a continuous mental existence, he or she would nevertheless have experiences—thus
qualifying the animal for rights.[69] Later on, Dunayer is more explicit: she directly
states that many instances of non-human animal behavior could not be explained
unless they were self-aware.[70]
When discussing mirror self-recognition tests that are applied to animals who
are aware of themselves in non-visual ways, Dunayer further notes that “Someone
who lacks a visual image of themselves, or who doesn’t understand that a mirror
is showing them their reflection, doesn’t necessarily lack self-consciousness.”[71]
Dunayer’s mirroring of Francione’s work is done without any reference to it.

Dunayer challenges Singer’s spurious contention
that possessing a concept of a self with continuous mental states is
required in order to have an interest in continued existence by arguing
that this view is supposedly tantamount to the circular statement: “if someone
has no conscious interest in continued existence, then continued existence isn’t
in their conscious interest.”[72] She responds to this contrived
statement by asserting that someone who lacks a conscious interest in continued
existence may nevertheless have an unconscious interest in continued existence,
as in the case of healthy [human] babies.[73]
For Dunayer, this unconscious interest entails having experiences that may or
may not be accompanied by a concept of death.[74] Dunayer cites Steve F. Sapontzis’s
view that death can constitute a loss for someone even if he or she lacks a
concept of death.[75] Moreover,
Dunayer notes Sapontzis’s observations that it is illegal to murder human infants
despite their not having a concept of death, that death ends all positive experiences
and opportunities, and that non-human animals value their own lives—as evidenced
by their efforts to avoid being killed.[76]
Dunayer goes on to cite Singer’s view that the future-oriented desires of beings
who possess continuous mental states are thwarted by death whereas this cannot
be the case for beings who lack continuous mental states.[77]
Dunayer responds by noting that all non-human animals undertake future-oriented
actions, which may suggest her unstated claim that these actions cannot be explained
without non-human animals having future-oriented desires.[78]
Dunayer also argues that the present point of Singer’s is moot because continued
existence does not, in fact, fulfill the myriad desires of many human animals,
as many of these desires are frustrated.[79] Thus, Dunayer concludes that
Singer is inconsistent because he holds that it is moral for non-human animals
to be killed and replaced with new non-human animals because they lack future-oriented
long-term goals, but he does not hold this view with respect to human animals
who do not have many future-oriented long-term goals.[80] From the foregoing, it should be clear that Dunayer’s analysis
adds little, if anything, to Francione’s.

Dunayer objects to the view that since non-human
animals lack the capacities to have duties to others and to enter into social
contracts, they should[81] not have legal rights.[82] Dunayer responds to this view by arguing that
many human animals lack those capacities so it is contradictory to deny non-human
animals legal rights on that basis without doing the same to human animals.[83]
The same is true of the capacity and political power to make laws.[84]
Dunayer notes that, in the past, law makers of European ancestry have chosen
to extend [presumably on moral grounds] basic legal rights to humans of African
ancestry, and male law makers have extended those rights to women.[85]
Again, Dunayer states that many human animals who are mentally challenged cannot
participate in law making but they are nevertheless granted legal rights. She
concludes that human animals – who have the might to make laws – should
likewise extend basic legal rights to non-human animals.[86]
Moreover, Dunayer asserts that animal rights advocates seek laws that would
prevent non-human animals from being exploited or otherwise harmed by human
animals.[87] She states that
animal rights advocates intend to abolish the domestication of non-human animals,
allowing them to live outside of human society in freedom within their native
environments.[88] Shortly following this claim, Dunayer argues
that the status of non-human animals as legal property is a social and legal
construct.[89] She then rhetorically
suggests that human animals ought to extend justice to non-human animals[90] and, given the preceding context, this in turn suggests that
the legal property status of non-human animals should be abolished. Dunayer
concludes by suggesting that the sole criterion for legal rights should be sentience[91],
and this – given the context – presumably includes the right not to be
property. She does all of this without any reference to Francione’s work.

Regarding the claim that since non-human animals
are morally inferior to human animals they should not have rights, Dunayer objects
by offering evidence that it is solely the latter who undertake immoral actions.[92] For example, “it’s humans who needlessly hurt and kill.”[93]
“It’s rare for nonhuman predators to unnecessarily prolong killing.”[94]
“For mere convenience and taste, consumers eat the remains [of non-human
animals who have been killed for profit].”[95] Similarly, Dunayer cites many
more examples that show how non-human animals act morally[96],
including the case of two experiments, the first of which involved humans who
falsely believed they were giving other humans electric shocks for failing to
answer questions correctly.[97] Most of the humans complied with the order
to administer the shocks that they believed were real and excruciating while,
in a second experiment involving rhesus monkeys, most of the monkeys refused
to shock another monkey despite the fact that doing so entailed that they would
not be provided with adequate food.[98]
Dunayer notes that the monkeys were more moral than the humans because the monkeys
exhibited altruism at considerable expense to themselves whereas the humans
did not.[99] Regarding all of this, she makes no reference to Francione’s
work.

Furthermore, Dunayer rhetorically suggests
that if the dubious claim that non-human animals do not consciously make moral
choices were true, that would be irrelevant because many human animals who are
entitled to basic rights likewise do not make conscious moral choices.[100]
Also, she states that in the relatively few cases in which non-human animals
cause needless harm to others, they might not be aware that their actions are
needless and harmful.[101] Dunayer argues that human animals who are
incapable of making autonomous moral choices are not held accountable for any
harm that they cause to others, and she rhetorically suggests that the same
should be true of non-human animals.[102]
As before, Dunayer fails to cite Francione.

Also as before, Francione discussed precisely
the same issues surrounding moral agency much more effectively than, and four
years prior to, Dunayer. Francione observes that many philosophers, from the
ancient Stoics to Immanuel Kant to John Rawls, hold that human animals have
no moral obligations to non-human animals and the latter can be excluded from
the moral community because they, unlike humans, have no sense of justice and
cannot respond to moral obligations or claims of right.[103]
Francione describes this theory of moral agency as one of reciprocity, as it
states that since the first group cannot respond morally to the second group,
the second has no obligations to respond in this way towards the first.[104]
Francione observes that the first of variant of this theory, started by the
Stoics, defines “reason” such that only human animals are rational and states
that only rational beings can participate in a community created by rational
beings and understand the requirements of justice.[105]
Kant, agreeing with and building upon this view of the Stoics, argues that rational
humans can only have moral duties to other rational beings.[106]
Likewise, Francione further notes Rawls’s view that only those who are capable
of having a sense of justice (or a desire to act on the principles of justice)
are included within the moral community, and non-human animals do not possess
this capacity.[107] Francione also notes Carl Cohen’s view that non-human animals
are incapable of responding to or even experiencing moral claims, so they can
be excluded from the moral community.[108]

The second variant of the reciprocal theory
of moral agency that Francione calls attention to is social contract theory,
first formulated by the ancient Epicurean philosophers and continued by Thomas
Hobbes and Rawls. Francione describes this theory as one that determines the
morality of actions by constructing a hypothetical contract between those who
are capable of making agreements with each other in order to govern their own
behavior.[109] Francione notes that social contract theory maintains that
human animals do not have any moral obligations towards non-human animals because
the latter are incapable of making or responding to moral claims, and are thus
incapable of helping to form a social contract.[110] In particular, Francione notes that the Epicureans
held that only humans, who are alone capable of making contacts to avoid causing
suffering to others, are subject to justice.[111] Likewise, Francione describes Hobbes’s view
that since non-human animals cannot make social contracts due to their lack
of capacity for abstract language, they cannot be subject to the only thing
that makes justice possible; the social contract.[112] Francione observes that Rawls argues that the social contract
consists of rules that rational beings would decide upon if they knew they were
going to live within a certain society but were ignorant of who they would be
or what position they would have in that society, something Rawls notes that
non-human animals are incapable of.[113]

Following feminist thought, Francione objects
to the above two variants of the reciprocal theory of moral agency by arguing
that its assumption that moral rights and duties arise from a hypothetical contract
between rational individuals is questionable, given the fictitious and ubiquitous
nature of these contracts.[114]
Furthermore, like Dunayer four years later, Francione argues that there are
many human animals who are incapable of participating in the aforementioned
kind of social contract due to their not being able to respond to or exercise
moral claims.[115] This suggests that since certain human animals are not excluded
from the moral community due to their inability to reason about moral choices
or enter into social contracts, consistency demands that non-human animals should
not be so excluded either. Francione argues that, for purposes such as deciding
whether one has a legal guardian appointed who makes choices on one’s behalf
or, conversely, one is allowed to make a legally binding contract, the ability
to make moral claims or respond to these claims is relevant.[116]
Francione further argues, however, that for the purpose of deciding whether
a human should be treated exclusively as a resource, abilities related to moral
agency are entirely irrelevant.[117] “For purposes of not being treated as a resource,
as the property of another, as a being without morally significant interests,
there is no difference between a human who is capable of making a contract
and an insane human [or “normal” non-human animal] who does not understand what
a moral or legal obligation is.”[118] More than this, Francione responds to the
view of Peter Carruthers, who not only argues that non-human animals have no
moral status due to their not being able to formulate a social contract, but
also addresses the objection that it is inconsistent to treat human and non-human
animals (who both lack the rational agency required to participate in a social
contract) differently.[119] Francione explains and refutes Carruthers’s
view[120], but my point here is merely
that Francione’s discussion of moral agency is much more nuanced and well argued
for than Dunayer’s. Nevertheless, it is clear from the foregoing that Dunayer
borrows key arguments and conclusions from Francione.

Ending the domestication[121]
and abolishing the property status of non-human animals based upon the fact
that they are sentient alone is the core theme of Francione’s work and Dunayer
picks up on this. Dunayer’s references to “needlessly” and “unnecessarily” killing
and otherwise harming non-human animals for “mere convenience and taste [enjoyment]”
contain elements of Francione’s thesis in Introduction to Animal Rights,
very briefly summarized as follows. Francione argues that the majority of human
animals contradict themselves because they both accept the humane treatment
principle – which says that unnecessary suffering should never be inflicted
upon non-human animals but, in cases of true conflict or emergency, the interests
of human animals may be given preference – and they undertake
activities which violate that principle; subjecting non-human animals to suffering
for entirely unnecessary reasons such as amusement, pleasure and convenience—most
notably due to the consumption of animal products. In order to avoid this irrational
contradiction, Francione argues that one should abide by the principle of equal
consideration of interests, which says that similar interests ought to be treated
similarly. For example, if the basic right not to be property protects the interests
of human animals, then the same right should protect the same fundamental interests
of non-human animals. Thus, Francione concludes that the property status of
non-human animals ought to be abolished, and this entails that all institutionalized
animal exploitation – including their being bred and domesticated[122]
– should likewise be abolished and not merely regulated.[123]
Francione argues that the sentience of non-human animals alone is sufficient
for their having interests, and thus being subject to the principle of equal
consideration of interests, because their capacity to suffer entails an interest
in their not suffering[124], and they “like humans, have an experiential
welfare in the sense that things can go better or worse from them depending
on whether their interest in not suffering is respected, and on whether other
interests they have as sentient beings [such as the interest in continuing to
have an experiential welfare by remaining alive and sentient] are facilitated
or frustrated.”[125]

In addition to appropriating the above mentioned
aspects of Francione’s theory, Dunayer’s discussion of the history of rights
is also found in Francione’s Introduction to Animal Rights. Francione
notes that the concept of rights was created to safeguard the interests of rich
white male human landowners but eventually was extended to other humans as a
result of better application of the principle of equal consideration of interests,
something that Francione argues ought to happen to non-human animals.[126] Similar to Dunayer in 2004, Francione in
2000 argued that human animals who are incapable of devising (or making legal
or moral) rights or even understanding (and thus being aware of) the concept
of rights nevertheless are accorded rights, and the same should be true of non-human
animals.[127] Also like Dunayer,
Francione concluded that the domestication and breeding of non-human animals
must be abolished, as failing to do so perpetuates their property status.[128] Francione argues that non-human animals ought
not to be brought into existence (by the human animals who breed and domesticate
them) in the first place.[129]
He observes that human animals manufacture “conflicts” between themselves and
other animals.[130] For example, after bringing billions of non-human animals into
existence every year and otherwise treating them as property, many human animals
then consider their obligations to these other animals, such as “balancing”
their own trivial interests in eating animal products against the vital interests
of those eaten.[131] Francione
notes that the interests of non-human animals are always violated because the
outcome of the “balancing” process has already been predetermined by the status
of non-human animals as beings who can be exploited exclusively as resources,
and who are brought into existence solely for that purpose.[132]
Conversely, Francione concludes that “If we recognize that animals have a basic
right not to be treated as our resources, and we abolish those institutions
of animal exploitation that assume that animals are nothing but our resources
just as we abolished human slavery, we will stop producing animals for human
purposes and thereby eliminate the overwhelming number of these false conflicts
in which we ‘balance’ human and animal interests.”[133]
Obviously, if this were done, non-human animals would be free to live undisturbed
within their native environments. Again like Dunayer, Francione gives evidence
and accounts of non-human animals acting morally and having moral sentiments.[134] Dunayer even uses the same example of discovering
more altruism in monkeys than humans via electric shock experiments, with the
difference that Francione’s example involves macaque monkeys being shocked whereas
Dunayer’s example involves rhesus monkeys.[135]

Dunayer summarizes Tom Regan’s view that all
“subjects of a life” should have legal rights and equal moral consideration,
citing his view that anyone with an experiential welfare is a subject of a life.[136] Dunayer notes that, on the face of it, this
should entail that Regan holds that all sentient beings are subjects of a life
because, as sentient beings, they all have an experiential welfare by definition.[137] Yet, Dunayer also notes Regan’s
view that subjects of a life must have various cognitive attributes beyond mere
sentience, and that Regan is uncertain about whether fishes, reptiles and amphibians
are subjects of a life but he nevertheless assumes (without knowing) that they
are conscious.[138] Dunayer
responds by referring to evidence that all animals are conscious.[139]
Up to this point, she does not mention Francione.

Dunayer argues that, although Regan claims
to hold that at least some non-human animals have inherent moral value[140],
he nevertheless does not accord these animals equal inherent value because he
maintains that a human animal should be chosen over a non-human animal in situations
where both are endangered but it is only possible to save one.[141]
Dunayer states that Regan’s reason is that most human animals have more numerous
and varied sources of satisfaction than non-human animals do.[142]
Moreover, Dunayer objects to the conclusion in Regan’s lifeboat example (in
which one dog and four humans are stranded with only enough food to feed four)
that the moral choice is to throw the dog overboard since the dog supposedly
has less satisfaction in life compared to the humans.[143]
She objects on the grounds that there may be more opportunities for satisfaction
in a dog’s life because dogs, for example, have a much richer experience of
the sense of smell.[144] Dunayer asserts that Regan’s
view is speciesist because it assumes that the lives of non-human animals generally
have less value than those of human animals.[145] Moreover, Dunayer rhetorically suggests that she objects to
Regan’s view that it is morally acceptable to save the life of one human over
the lives of one million dogs and states that Regan is inconsistent due to his
previous claim that all subjects of a life have equal moral rights.[146] She also argues that Regan’s
view, that painlessly killing innocent (but not guilty) beings is immoral, is
inconsistent with Regan’s claim that at least some non-human animals have a
right to life.[147] Dunayer
comments “If Regan believes that humans have a greater right to life than other
animals because they have more ‘opportunities for satisfaction,’ then, to be
logically consistent, he must also believe that the most intelligent human in
the boat has a greater right to life than any of the other humans.”[148] Moreover, Dunayer cites Sapontzis’s view that when egalitarian
views replace hierarchical views (such as Regan’s) this leads to moral progress.[149]
Again, regarding the abovementioned points, Dunayer does not refer to Francione.

Dunayer then claims that Francione, like Regan,
also expresses the speciesist view that the lives of non-human animals have
less value than those of human animals because, as described by Dunayer, Francione
contends that the intuition of most human animals is that – when nothing is
known about a human animal and a dog animal except their respective species
– the life of the human animal should be saved over that of the dog animal.[150] Dunayer quotes Francione thus: “We regard it as morally preferable
to choose the human over the animal [sic].”[151] Dunayer states that, according to Francione,
“Saving the human accords with”[152]
(Dunayer’s words) “our absolute preference for the human”[153]
(Francione’s words). In response to this statement, Dunayer retorts that she
neither regards saving the human to be morally preferable nor does she have
an absolute preference for the human.[154] Conversely, she argues that
saving the dog animal is as moral as saving the human animal because all sentient
beings are equal.[155]

Dunayer claims that Francione compares a doctor’s
decision to give an otherwise healthy human the only available pint of life-saving
blood instead of giving it to a terminally ill human – with a decision to save
the human in all situations in which one is forced to choose between the life
of a human and the life of a non-human animal.[156]
Dunayer responds by arguing that, while life expectancy may be relevant to choosing
between the lives of two individuals, species is not, so she objects that Francione’s
analogy is inappropriate.[157] Furthermore, Dunayer claims
that Francione holds that “Non-human emancipation wouldn’t mean that…”[158] (Dunayer’s words) “we will no longer be required
to save the human”[159] (Francione’s
words). To this, Dunayer retorts:

Required to save the human? Yes that view
is compatible with nonhuman emancipation. However, it isn’t compatible with
animal equality. It’s speciesist. We aren’t morally obligated to choose
the human any more than we’re morally obligated to choose the dog. It would
be perfectly moral to flip a coin.[160]

First of all, regarding the concept of equal
inherent value, Francione explains that the value of a being[161]
is inherent or intrinsic when it goes beyond the value obtained by others in
using that being as a resource.[162] In other words, a being with inherent value
is valuable in him or herself, independent of that being’s individual characteristics
and value as a resource to others.[163] Not only does Francione argue that having inherent value is
the minimum condition required to be a member of the moral community and this
entails the right not to be property, but he also argues that all beings with
inherent value possess it equally.[164] For example, for the purpose of deciding whether one being
who is less “intelligent” than another should be used exclusively as a resource,
both beings cannot be so used because both have equal inherent value.[165]
This is Francione’s view, and it overlaps somewhat with Regan’s view, but with
very significant differences. Francione states:

There are those who agree that we ought
to accord some inherent value to animals but maintain that animals have
a lesser degree of inherent value and that this difference justifies our
treating them as the resources of humans. But this is no different from
stating that women have less inherent value than men, or that people of
color have less inherent value than white people. … To say that a human
has moral significance but has less inherent value than other humans is
self-contradictory. The being who has less inherent value will necessarily
be at risk of being treated as a thing. Similarly, if animals have less
inherent value than humans, then their interests may be ignored when it
is in our interests, and they risk being excluded entirely from the moral
community and treated as things—exactly as they are treated now. … If we
accord equal inherent value to all humans, irrespective of their characteristics,
and we deny that same value to animals, then our failure to apply the principle
of equal consideration is arbitrary and unjustified.[166]

Francione observes Richard Sorabji’s view that
Regan holds that various cognitive attributes may be relevant to a being’s inherent
value, but Francione argues that Sorabji’s interpretation of Regan is misguided—in
part due to the confusing nature of Regan’s argument. Francione clarifies the
issue by referring to Regan’s lifeboat example: “Although death is a harm to
the dog, Regan argues, death would be a qualitatively greater loss, and, accordingly,
a greater harm, to any of the humans … It would, in Regan’s view, be morally
obligatory to kill the dog. Further, Regan claims that even if the choice
were between a million dogs and one [human] person, it would still be obligatory
under rights theory to throw the dogs overboard.”[167]
Francione’s crucial point of distinction is this:

With respect to genuinely exceptional or emergency circumstances
in which it is absolutely impossible to avoid the death of at least one right-holder
(who has equal inherent value) and a choice must be made regarding who will
live and who will die in order to avoid the deaths of all, Francione is unequivocal:
the human animal may be preferred and this is consistent with
the theory of animal rights. The alternative option, however, remains
open for Francione; the non-human animal may also be preferred and this too
is consistent with the theory of animal rights. Although none of the examples
in which Francione discusses preferring the non-human animal’s interests (in
emergencies) involve the case of not having any knowledge about the human and
non-human animals except their respective species, Francione leaves this option
available:

To the extent that in such situations Regan
would require choosing the human interest over the animal interest
based on a difference in inherent value … then his resolution of the lifeboat
matter is problematic and relies on ‘perfectionist’ theories that he purports
to reject.[168]

Francione’s theory begins with two observations, one of which
is that the majority of human animals (rightly or wrongly) hold the belief
that human animals morally should always be given preference over non-human
animals in situations of genuine emergency. Dunayer’s charge that this violates
“animal equality” and is thus speciesist elides an important distinction. Francione’s
theory entails that the action of always saving the human in emergency
situations is consistent with animal rights theory, as is the alternative action
of always saving the non-human animal. Conversely, the motivation behind
either the act to save the human or the act to save the non-human will
always be morally arbitrary to a certain extent and will always be morally
problematic and, as such, it does not tell us very much about moral decision
making and therefore cannot be used to morally condemn anyone who makes either
choice in any instance.

As Francione remarks, if the emergency involved
choosing between the lives of two humans, the individual making the choice might
always decide on the basis of whether or not one of the humans was a family
member and believe that doing so is an absolute moral obligation. Suppose
that the individual making this choice knew that one of the individuals was
a member of her or his immediate family, but did not know which particular family
member it was, and did not know anything about the other human. If the life
of the unknown immediate family member were chosen to be saved, would the individual
who made that choice be “familist” in the same way that those who harm others
on the basis of race or species are racist and speciesist? Would the individual
who chooses to save his or her family member be violating “human equality,”
or the moral principle of considering the similar interests of all humans similarly?
The reason why the answer to these questions is “no” is that all such lifeboat
or burning house scenarios involve morally arbitrary and morally problematic
choices from which moral conclusions cannot be drawn, and this is Francione’s
point. Feminist ethicists have long objected that the requirement of utilitarian
theory to abstractly view each individual merely as a carrier of utility among
many blank, morally equivalent individuals ignores the value of significant
relationships of interdependence. Similarly, Dunayer’s view that flipping a
coin would treat all parties in emergency situations equally may be true but
doing so would ignore several factors[169] that Francione draws attention to and – due to unusual nature
of the circumstances – failing to flip a coin would not entail that one being
has less inherent value than the other.

Thus, Francione’s observation that most humans have the intuition
that, in emergency situations, the life of a human should always be saved over
that of a non-human animal does not entail – contrary to Dunayer’s claim – that
the lives of non-human animals have less inherent value than those of human
animals. One only need read Francione’s text to clearly understand this point.
As stated above, Francione does not maintain that preferring the human is morally
required and, I would add, this point of Francione’s entails that it is also
morally acceptable and consistent with animal rights theory to prefer the interests
of the non-human animal in emergency situations. This is in fact what Francione
says:

I do not share Regan’s position that it
is some sort of empirical fact that death is a greater harm to humans than
to animals, or that we are obliged to save one human over a million dogs.
In situations of true emergency, we may be justified in saving the human
over the animal, but we may also be justified in saving the animal over
the human.[170]

Whatever choice I would make in such a
situation is irrelevant to the validity of the argument that according animals
moral status means that we must apply the principle of equal consideration
to them and extend to them the basic right not to be treated as things.
If my argument is valid, then even if my choice of my child over the dog
[or another’s human child] were inconsistent with my argument, that would
say something about me and my moral inconsistency but nothing about the
validity of my argument.[171]

From the above, it is clear that Dunayer seriously
misrepresents Francione’s views on this matter. Again, just as our choice to
save our own child (or an unknown immediate family member of ours) over that
of someone else’s in an extreme emergency situation is not “familist”
or contrary to the principle of equal consideration of interests, the choice
to save a human child over a dog (or vice-versa) in an extreme emergency
situation is likewise not speciesist and contrary to the principle of equal
consideration of interests.[172] Francione makes this clear
while Dunayer’s false depiction, out-of-context quotations and related objections
obscure it.

In this light, Dunayer’s objection that Francione
compares the choice to save a life based upon life expectancy with the choice
to save a life based on species membership also misrepresents Francione’s view.
Francione’s use of these two examples is not to suggest that they are analogous
in all respects, but merely to point out one and only one commonality between
them. Namely, just as the doctor’s decision to save a patient with better prospects
within an emergency situation does not entail that it is morally acceptable
for the doctor to conduct vivisection upon terminally ill patients, the decision
of most human animals to save a human over a dog within an emergency situation
likewise does not entail that it is morally acceptable to conduct vivisection
upon dogs.[173] This is the
only point of comparison. In both cases, Francione states that, since the decisions
involved are necessarily arbitrary, morally unsatisfactory and incompatible
with satisfying general moral principles (such as anti-speciesism or the principle
of equal consideration of interests), neither is speciesist nor prejudicial.
This is so because it is impossible to draw moral conclusions from inherently
morally problematic, extreme emergency situations.[174] Thus, Dunayer has taken Francione’s statements out of their
crucial context and her charges of speciesism are therefore inapplicable.

Like Dunayer, Francione objects to Regan’s
view that one is morally required to kill one dog or one million dogs in order
to save the life of one human but, unlike Dunayer, Francione correctly explains
why Regan comes to this questionable view[175], as I will discuss below.
Also like Dunayer, Francione observes that Regan maintains that human and non-human
animals have moral[176] rights
and equal moral value despite their many differences.[177]
Francione cites Regan’s requirement that subjects of a life must have various
cognitive abilities beyond sentience, Francione lists these same abilities that
Dunayer lists and, also like Dunayer, Francione observes that only “normal”
non-human mammals over one year of age are subjects of a life according to Regan.[178] Francione argues that although certain human and non-human
animals both lack the qualities required to satisfy Regan’s definition of “subject
of a life,” they are nevertheless sentient, this entails an interest in not
suffering or experiencing pain and they therefore have an experiential welfare.[179]
Moreover, Francione objects that non-mammals, including fishes, do possess –
contrary to Regan’s claim – intelligence, sentience and an experiential life.[180]
Francione rejects Regan’s rights theory, in part, because its multiple criteria
for being a subject of a life and its other are overly complicated.[181]
Instead, Francione argues that the principle of equal consideration of interests
directly entails the right not to be treated property and the abolition of non-human
animal exploitation.[182] Francione made these arguments four years
prior to Dunayer.

Francione argues Regan maintains the position
that, in emergencies, one is morally required to kill one dog or one million
dogs in order to save the life of one human because Regan assumes that non-human
animals are cognitively inferior to human animals and, accordingly, that death
constitutes a greater harm to the latter.[183]
As quoted above, not only does Francione reject Regan’s view that having Regan’s
list of traits required to be a subject of a life is necessary for moral significance,
Francione also rejects Regan’s view that death harms a human animal more than
one or one million non-human animals.[184]
Francione cites his reasons for this rejection as appearing in his 1995 article
“Comparable Harm and Equal Inherent Value: The Problem of the Dog in the Lifeboat,”[185] an article that Dunayer is familiar with.[186]

In 1995, after analyzing Regan’s text, Francione
thoroughly explained and argued that Regan in no instance maintains that
inherent value or being a subject of a life admit of degrees.[187]
Importantly, however, Francione also observes Regan’s view that the concept
of harm does admit of degrees. That is, Regan says the same harm (e.g. death)
inflicted upon two individuals may have different effects upon and be qualitatively
different for each individual depending, not on the qualities required to be
a subject of a life, but on the possession of special abilities or virtues such
as those required for higher mathematics or artistic excellence. The problem
with this, argues Francione, “is that it involves a different analysis
from that involved in the formation of Regan’s theoretical postulates.”[188] In particular, the first analysis is that of Regan’s general
theory and this analysis requires Regan’s postulates of equal inherent
value and his subject-of-a-life criterion to exclude all characteristics (such
as the abilities and virtues associated with higher mathematics or artistic
excellence) except those traits that constitute subject-of-a-life status if
Regan is to claim, as he does, that all subjects of a life have the right not
to be used merely as a means. The second analysis is that of Regan’s lifeboat
example and this analysis requires that harm admits of degrees which, Francione
argues, “may be the same as arguing that the being who is harmed less has an
inherent value that is different from, and less than, the one harmed more. Indeed,
in Singer’s theory, the different quality of experience is used primarily to
determine the relative value of different beings and not to differentiate
the varying degrees of harm suffered by beings with the same inherent value
[as Regan attempts, but fails, to do].”[189]
Thus, Francione concludes that the two analyses used by Regan are inconsistent
with one another; the first concerns “the inclusion of [non-human animals] within
the class of rightholders” whereas the second “concerns a very different context—the
resolution of a conflict between two rightholders.” For Regan to avoid this
inconsistency, Francione suggests dropping Regan’s attempted solution to the
lifeboat example and the second analysis that requires it. Otherwise, argues
Francione, the speciesist conclusion may follow that “To the extent that Regan
links even basic rights … with the possession of certain ‘virtues,’ he allows
for differential consideration of equal inherent value. Such a differential
consideration … might very well mean that animals will continue to lose in virtually
every situation in which their ‘rights’ were found to [genuinely] conflict
with those of humans.”[190]

Thus, Dunayer’s objections nine years later
that Regan fails to accord non-human animals equal inherent value, Regan accords
non-human animals less value less due to the traits they lack and this is speciesist
and inconsistent with Regan’s claim that all subjects of a life have equal rights
are substantially similar to Francione’s conclusions, although the main arguments
Dunayer uses to arrive at those conclusions differ significantly in their depth
and accuracy from Francione’s. Other correlates between Francione in 1995 and
Dunayer in 2004 include Dunayer’s objection that Regan’s view of killing the
innocent being wrong is inconsistent with his other claims, and Francione’s
discussion of Regan’s view of comparable harm providing the foundation for two
principles—principles that partly involve cases of innocent individuals being
harmed in comparable or incomparable ways.[191]
Also, Dunayer makes the same objection that Francione does regarding Regan’s
view entailing that death is less harmful to less intelligent humans and, accordingly,
the least intelligent human should be thrown out of a lifeboat containing humans
only.[192] Lastly, like Dunayer, Francione cites Sapontzis’s
view that Regan’s notion of comparable harm implies a human-dominated hierarchy.[193]
Except where explicitly noted above, Dunayer does not credit Francione for any
of these ideas.

Dunayer notes that existing law does not give
non-human animals any meaningful protection, only humans are legal persons who
have legal rights and non-human animals are legal property that does not have
legal rights.[194] Dunayer observes, “Some [non-human animal]
cruelty statutes appear under the heading ‘Crimes against Property’ or ‘Property
Destruction and Defacement.’”[195]
and provides an example of someone who was charged under such a law for giving
a cat owned by someone else needed medical treatment and a hysterectomy.[196]

To the above, Dunayer attaches “As legal scholar
and animal rights theorist Gary Francione has explained, instead of protecting
nonhumans, the law protects human property interests in nonhumans.”[197]
Dunayer then gives three examples of this point, illustrating that harm to non-human
animals is legally construed as violating the legal property rights of human
animals, not the fundamental moral rights of non-human animals.[198]

Dunayer notes that, under existing law, the
market solely determines the value of non-human animals and they are treated
as being replaceable.[199] Further, she discusses some legal cases of
non-human animals who were used for companionship being killed by human persons
who were not their legal owners and notes how damages for emotional distress
resulting from the loss of personal property were awarded to owners by the courts.[200] Dunayer comments, “The judges
recognize the importance of nonhuman companions to their owners. They
treat the nonhumans who died as a special class of property, but still property.”[201]

Dunayer notes how “wildlife conservation” laws
such as the Endangered Species Act (ESA) and the Marine Mammal Protection Act
(MMPA) do not accord individual non-human animals rights, but merely give some
protection to the group or species to which they belong.[202]
She notes how such laws set limits on killing and otherwise harming non-human
animals but do not prohibit them outright.[203] Moreover, these limits are
set to benefit human animals, not non-human animals.[204]
That is, Dunayer notes that the purpose of “wildlife conservation” laws is to
sustain and maximize the efficiency of non-human animal exploitation.[205]
She correctly states that the ESA sets limits on killing non-human animals “because
of their ‘esthetic, ecological, educational, historical, recreational, and scientific
value’ to U.S. citizens, not because non-humans have any rights or value of
their own.”[206] Contrary to this state of affairs, Dunayer
advocates protecting individual non-human animals with rights.[207]

Dunayer notes how being held as property is
equivalent to being enslaved[208] and that state [non-human animal anti-]cruelty
statutes endorse and perpetuate the slavery of non-human animals.[209] In particular, Dunayer notes
that these statutes fail to prohibit various forms of non-human animal exploitation,
but merely regulate them.[210]
She states: “In some states, even overworking a nonhuman [animal] isn’t punishable
unless the nonhuman [animal] was ‘seriously’ or ‘grossly’ overworked.”[211] Importantly, Dunayer asserts that the legal property status
of non-human animals entails that non-human animal anti-cruelty statues exclude
acts of exploitation that are the most cruel.[212]

Making a related but different point than the
above, Dunayer states “As Francione shows in Animals, Property, and the Law,
cruelty is legal if it’s business as usual.”[213]
This quotation appears to refer to why many acts of exploitation are
excluded from statutes; namely, because they involve “business as usual” (in
Dunayer’s words) or are part of larger exploitative institutions that are themselves
regarded as profitable, legitimate and generally socially acceptable (Francione’s
description). In making this “why” point, Dunayer inserts a footnote citing
sections in Animals, Property and the Law that not only refer to why
the exclusions exist (including, but not limited to, the abovementioned reason),
but the sections Dunayer cites also refer to the existence of the exclusions
themselves and their nature.[214]
After making the above quoted point in her text and supporting this point with
a footnote referring to Francione that goes beyond this original point, Dunayer
returns to the related but different point I address in the preceding paragraph
that “By various means, cruelty statutes leave the most common forms of cruelty
untouched.”[215] Then, without citing Francione, she discusses the nature of
the exemptions, including the fact that they exempt various exploitative institutions.[216]
Then, returning to the point she cites from Francione about exemptions in statues
for “business as usual,” Dunayer gives an example of such a statute and correctly
states that they do not prohibit cruelty and the like[217],
but “As Francione emphasizes, the point is to prohibit aberrant mistreatment,
torture and cruelty—mistreatment that isn’t a customary part of speciesist exploitation.”[218] These academic acrobatics involving the way Dunayer cites Francione’s
work may give the casual reader the impression that adequate citation is being
provided.

At this point, Dunayer returns to discussing
the nature of the exclusions found in non-human animal anti-cruelty statutes.
She lists a few more examples of these statutes and then states that they primarily
give minimal protection to non-human animals who are used for companionship.[219] Minimal, because most cases are not prosecuted, it is difficult
to win convictions (since many qualifications, such as intent to harm, must
be met) and penalties are insignificant.[220] Lastly, Dunayer reiterates that the statutes
do not abolish, but merely regulate the exploitative industries and this is
exemplified by the breeding of non-human animals for the purpose of enslavement.[221] She notes that non-human
animal exploitation industries would not exist without humans breeding them
since breeding makes these industries practical.[222]

Summing up her discussion of non-human animal
anti-cruelty statutes, Dunayer says “As Francione has stated, cruelty statutes
apply to a ‘relatively minuscule’ amount of cruelty and don’t provide non-humans
with ‘any meaningful level of protection.’ Cruelty statutes deal almost exclusively
with sadism or anomalies, egregious neglect—because such abuse doesn’t further
the use of nonhumans as property.”[223]

Similar to non-human animal anti-cruelty statutes,
Dunayer notes how the Animal Welfare Act (AWA) excludes most non-human animals
such as all non-mammals, rats, mice and animals who are used in vivisection
for the purpose of making the exploitation of animals who are used for food
more efficient.[224] She notes that, for the animals the AWA does
cover, virtually any form of exploitation is permitted.[225] Dunayer states: “The AWA is a sham. It legitimizes
the breeding, sale, purchase, imprisonment, torture, and murder of nonhuman
beings.”[226]

Likewise, Dunayer notes that the Humane Methods
of Slaughter Act (HMSA) legitimizes the killing of non-human animals who are
used for food.[227] She notes how it excludes all non-mammals.[228] Again, it permits virtually
any form of exploitation to occur.[229]
Dunayer notes how the HMSA requires that non-human animals be killed “humanely”
and goes on to describe the ways in which they are killed, rhetorically suggesting
that such killing is “inhumane”[230] and explicitly stating that
it is horrifically cruel.[231]
She further notes that the HMSA is poorly enforced.[232]
Lastly, “The HMSA sanctions mass murder. … Worldwide, the law categorizes nonhumans
as human property. … Touted as protecting nonhumans, ‘animal’ laws that authorize
exploitation actually perpetuate abuse.”[233]

Dunayer discusses non-speciesist alternatives
to the above laws. First, she states that most humans would agree that the law
should penalize those who are guilty and protect those who are innocent.[234] Regarding the activity of humans surviving by growing plants
and this inadvertently causing non-human animals to be killed or otherwise harmed,
Dunayer asserts that the humans who grow plants are innocent.[235] Then, she says that humans
who kill in self-defense are likewise innocent.[236]
The juxtaposition of these two related points suggests to me, although Dunayer
does not state, that humans killing in self-defense and humans inadvertently
killing non-human animals as a result of plant agriculture involve killings
that are merely unintended and unwanted side-effects of actions that are morally
acceptable. Next, Dunayer asserts that it is immoral to harm non-human animals
“for any other reason beyond immediate, direct necessity,”[237] which killing in self-defense and inadvertent
killing that results from plant agriculture both qualify as.[238] Conversely, Dunayer asserts that when humans
who knowingly participate in practices that cause “needless” suffering and death
such as egg farming, they are guilty.[239] She notes how present law regarding non-human animals rewards
these guilty humans and fails to penalize them.[240] Dunayer suggests that these laws should be
abolished and replaced with laws that respect the rights of non-human animals.[241] Dunayer notes that existing
laws that protect the rights of human animals are not disregarded if their violation
would result in benefiting others.[242]
“Utilitarian calculations such as cost-benefit analysis come into play only
within a context that respects those [human] rights.”[243]
This suggests Dunayer’s view that, with respect to non-human animals,
utilitarian calculations should only come into play in a context that respects
non-human animal rights.

In particular, Dunayer proposes that the U.S.
Congress pass a new constitutional amendment that declares all or some non-human
animals to be legal persons, not legal property.[244]
If this were done, Dunayer states that the existing 13th Amendment to the U.S.
Constitution prohibiting slavery would apply to non-human animals.[245]
She notes, however, that a new amendment of this sort would require the support
of most of the public in order to succeed.[246] “Therefore, no amendment
emancipating most or all nonhuman [animals] will be possible until many more
Americans reject animal-derived products and endorse nonhuman [animal] rights.”[247] Dunayer favors passing a new constitutional
amendment[248], but she also
proposes the alternative option that the courts could rule that non-human animals
are legal persons.[249] She concludes that, based
in popular support, the legal personhood of non-human animals, and thus the
abolition of their legal property status, would result in their being “liberated
from exploitation and abusive confinement.”[250]
They would be liberated from circuses, farms, “shelters” that kill non-human
animals and breeding institutions.[251] “The ‘production’ of nonhuman
[animals] for vivisection, slaughter, and any other purpose (including pet-keeping)
would cease. … Non-‘domesticated’ captives would be set free if they could thrive
without human assistance (after any necessary rehabilitation) and if appropriate
habitat existed.”[252] “In
the case of dogs, [personhood] would mean a rapid decline in the numbers of
dogs, whom humans could no longer legally breed, sell, or otherwise subjugate
and exploit for any purpose, including as ‘police dogs’ or ‘seeing eye dogs.’”[253]

Except where explicitly mentioned above, Dunayer
makes all of the above statements without citing Francione. She states that
personhood entails various rights.[254] Dunayer then objects:

Gary Francione states “We are obliged to
extend to animals [sic] only one right—the right not to be
treated as the property of humans.” I disagree. Freedom from enslavement
(property status) is the prerequisite for legal rights. In Paola Cavalieri’s
words, property status is “the basic obstacle” to nonhuman rights; freeing
nonhumans from that status is the point of departure, not arrival. With
regard to humans, Francione calls the right not to be property the “grounding”
for other rights. In my view, the same applies to nonhumans.[255]

Moreover, Dunayer states that “Francione doesn’t
advocate that nonhumans have” (Dunayer’s words) “the same legal rights (constitutional
or otherwise) that we accord humans” (Francione’s words).[256]
Dunayer, disputing this idea, advocates that non-human animals should have all
constitutional or other rights that are applicable and this would automatically
flow from the legal personhood status.[257]
She is careful to note, however, that “Many constitutional rights aren’t relevant
to nonhuman [animals]”[258] and gives the examples of the right to trial
by jury, freedom of religion and freedom of speech.[259] In addition to the right not to be property,
Dunayer maintains that non-human animals ought to have the constitutional rights
to life, liberty (including bodily integrity and physical freedom) property
(for example, their eggs and nests in undisturbed forests) and equal protection
of the law.[260] Dunayer holds
that after the property status of non-human animals has been abolished, that
is “after emancipation,” most would live free and not be “domesticated.”[261] In this event, when free-living animals such
as geese, squirrels and bears randomly come into contact with humans, Dunayer
says the non-human animals should have legal rights that prevent the human animals
from interfering with them.[262]
She also provides a list of legal prohibitions that would stem from the rights
to life, liberty and property.[263]

Dunayer objects that although Francione’s single
right not to be property would protect non-human animals from institutionalized
exploitation, such as that found in the government sanctioned commercial hunting
industry, the right not to be property would not prevent individual human hunters
from hunting in non-institutionalized contexts.[264]
In order to prevent that, Dunayer claims that the additional right to life would
be required.[265] Dunayer notes how Francione equates the right
not to be property with the right not to be treated as a resource[266] and objects:

If I murder a human out
of anger, I haven’t treated them as a resource. Nevertheless, I’ve violated
their right to life. Nonhuman rights too, can be violated whether or not
nonhumans are regarded as resources. When an exterminator murders all the
wasps who live in a nest attached to a house, the wasps are viewed as pests,
not resources. Their murder doesn’t involve any exploitation. [Therefore,]
Wasps need a legal right to life.[267]

Dunayer agrees with Francione that emancipation
or abolishing the property status of non-human animals would end much of the
suffering and death that non-human animals are currently subject to.[268]
She notes, however, that doing so would not end conflicts between human and
non-human animals that involve the use of land, water and human-constructed
dwellings.[269] Dunayer maintains that when human animals kill non-human animals
in these conflicts, it does not involve any exploitation but it nevertheless
violates the rights of the non-human animals.[270] She notes that Francione advocates that the
principle of equal consideration apply to all sentient beings and rhetorically
suggests that this would entail much more than merely not treating non-human
animals as resources.[271]
That is, Dunayer contends that equal consideration would require that non-human
animals have the rights to life, liberty (including physical freedom and bodily
integrity) and property ownership.[272] Even with the right not to
be property, without the other aforementioned three rights, Dunayer contends
that non-human animals would still be killed, trapped, confined, battered, sexually
assaulted, tortured and have their milk, hives, forests and so on stolen or
destroyed by individual human animals acting outside of institutional structures.[273]

Dunayer notes Francione’s observation that,
after the property status of non-human animals is abolished, some human animals
might still want to build homes in areas only occupied by non-human animals.[274]
She rhetorically suggests that with only the right not to be property
without the right to have territory or other property, it would be impossible
to resolve territory conflicts between human and non-human animals.[275]
Dunayer mocks Francione’s proposed resolutions thus: “We should ‘try’ to give
the nonhumans equal consideration, make at least a ‘good-faith effort’ not to
intentionally kill them, and, if necessary, ‘relocate’ them.”[276]
Disagreeing with this, Dunayer asserts that non-human animals should always
be subject to the principle of equal consideration, which is the necessary “first
step to finding the most equitable solution to any conflict.”[277]
Moreover, Dunayer asserts that non-human animals should never be relocated,
and that they should never be killed except in extraordinary circumstances such
as self-defense.[278]

Dunayer claims that Francione holds the view
that, “outside a context of exploitation,” the interests of human animals should
take precedence over those of non-human animals in cases of conflict because
non-human animals have less value than human animals for the purpose
of resolving conflicts.[279] Dunayer claims that Francione categorically
maintains that all sentient beings do not have the same value for purposes of
resolving conflicts.[280]
She claims that Francione holds that it may be permissible to consider traits
such as human-like intelligence when the interests of human and free-living
non-human animals conflict, and that the differences between them might justify
differential treatment that favors the human animal.[281]
For example, Dunayer cites Francione as contending that humans might decide
to relocate mice in order to build human dwellings and this decision might be
based upon the determination that mice care less about their home territory
than humans do.[282] Dunayer objects that mice might care or “desire”
or “value” their habitat more than humans are capable of knowing and that if
mice were incapable of such conscious valuing they nevertheless may still need
their habitat.[283] Dunayer
charges that Francione contradicts a strong theme in his own work by balancing
the interests of human and non-human animals in a way that is already predisposed
towards favoring the former.[284] That is, Dunayer charges
that even if both human and non-human animals both have the right not to
be property, territory conflicts will always be resolved in favor of human
animals unless non-human animals have the right to have property.[285] She notes that the same argument applies
to Native Americans who were wrongfully displaced by Americans of European ancestry.[286]
Other rights violated by the relocation of non-human animals include those to
life, liberty and non-interference, the latter constituting “the essence of
nonhuman rights.”[287]

Years before Dunayer, Francione made the above
observations and claims regarding legal theory applied to non-human animals.
As noted, Dunayer does cite Francione in a few of these instances, but fails
to do so for others. For Dunayer’s claims regarding the lack of legal protection,
rights and personhood and the reality of the legal property status of non-human
animals, see Part I of Francione’s Animals, Property, and the Law[288] and chapters three[289] and four[290]
of Francione’s Introduction to Animal Rights. For Dunayer’s observations
regarding the property status of animals as it relates to non-human animal state
anti-cruelty statutes, see Part II of Francione’s Animals, Property, and
the Law[291] and chapter three of Introduction to Animal Rights[292].
In particular, regarding Dunayer’s observations on the reasons why anti-cruelty
statutes fail to protect non-human animals or accord them rights, such as regulating
but not prohibiting various forms of exploitation, exemptions, ambiguous terms
such as ‘seriously overworking,’ failure to prosecute, establishing mental intent
to harm and insignificant penalties see the abovementioned sources[293] as well as the sections of Francione that
Dunayer does cite.[294] For
Dunayer’s observations regarding the law as it relates to the market value and
replacability of non-human animals, cases involving emotional distress to humans
whose “pets”[295] are harmed, and argumentation against the
breeding of “pets,” see both chapters three in Francione’s Animals, Property,
and the Law[296] and Introduction to Animal Rights[297]. For Dunayer’s claims on
“wildlife conservation” laws see the Appendix of Francione’s Introduction
to Animal Rights.[298] Like Dunayer, Francione also
discusses the fact that the breeding of non-human animals, including but not
limited to “pets,” is the root cause of their exploitation.[299] Francione made the same points as Dunayer regarding the property
status of non-human animals in relation to the AWA, the HMSA, their lack of
enforcement, their regulation and perpetuation of exploitation and the legal
meaning of terms such as “humane”.[300]

Like Dunayer after him, Francione argued that
the inadvertent and unintentional deaths of non-human animals due to plant agriculture
are not immoral as the intentional killings of non-human animals for their meat
are immoral.[301] Like Dunayer, Francione argued that a human
animal killing a human or non-human animal in genuine self-defense is not immoral.[302] Dunayer also parallels Francione
in rejecting practices that needlessly or unnecessarily cause non-human animals
suffering and death outside of extraordinary emergency situations.[303] Dunayer’s discussion of laws that protect
human rights, utilitarianism and laws that fail to protect non-human animal
rights reflects Francione’s views.[304]

Admittedly, unlike Dunayer, Francione does not advocate passing
a new Congressional amendment to the U.S. Constitution. Francione, however,
originally argued:

For the most part, the law reflects social
attitudes and does not form them. This is particularly true when the behavior
in question is deeply embedded in the cultural fabric, as our exploitation
of animals undoubtedly is. As long as most people think that it’s fine to
eat animals, use them in experiments, or use them for entertainment purposes,
the law [congressional or otherwise, constitutional amendment or otherwise]
is not likely to be a particularly useful tool to help animals. … Nonhumans
will continue to be exploited until there is a revolution of the human spirit,
and that will not happen without visionaries trying to change the paradigm
that has become accustomed to and tolerant of patriarchal violence.[305]

With respect to the time before this non-violent revolution,
in which most humans think that it is morally acceptable to eat animal products,
vivisect non-human animals, exploit them in circuses and so on, it is clear
that Dunayer argues along very similar lines as Francione did two years earlier.
With respect to the time after the paradigm shift that Francione speaks
of, Dunayer fails to realize that in a vegan world in which a critical mass
of humans already respect non-human animal rights, the law will inevitably begin
to reflect the new status quo and recognize non-human animals as persons. Whether
this takes the contrived form of a special new constitutional amendment, a court
ruling or some other general recognition that non-human animals are no longer
legal property, such legalities will happen as a matter of course after the
societal shift in human consciousness. This is what Dunayer fails to realize
when she focuses upon future constitutional amendments and future Supreme Court
rulings. As Mohandas K. Gandhi wrote:

No special legislation without a change
of heart can possibly bring about organic unity. And when there is a change
of heart, no such legislation can possibly be necessary.[306]

I will argue that, at the least, Dunayer grossly misinterprets
Francione’s legal theory. The reader of this review, and of Francione and Dunayer’s
writing, may judge as to whether Dunayer’s characterization of Francione’s views
constitutes outright falsification.

As quoted above, when Dunayer cites
a line from Introduction to Animal Rights in which Francione says there
is a moral obligation to only extend to non-human animals the one right not
to be property, Dunayer inserts a “[sic]” notation – the Latin word meaning
“thus,” indicating that the previous part of the quotation genuinely
is an accurate depiction of the original text – in the middle of Francione’s
statement. In this case, the words that appear prior to Dunayer’s “[sic]”
notation are “We are obliged to extend to animals”. So, if Dunayer is using
the “[sic]” notation correctly, she is flagging the fact that the words
“We are obliged to extend to animals” really are Francione’s. It is unclear
why Dunayer would draw special attention to this opening portion of the quotation
and not the latter part that mentions the “one” right that Dunayer is so concerned
about. Sometimes, the “[sic]” notation is incorrectly used to indicate
that a portion of quoted text has been removed with the remaining quoted text
still retaining its basic original meaning. Dunayer does not make this mistake
because the quotation she provides is a word for word representation of Francione’s
original text.[307] One would
be left wondering why Dunayer uses this linguistic device at all, or places
it in the middle of the quotation, unless one examined the larger original passage
from which Dunayer draws it.

Francione begins the passage in question
by observing that the public discourse regarding the moral status of non-human
animals is confused.[308] He says that one reason for
this confusion is that some members of the public falsely believe that the animal
rights position says that both human and non-human animals have exactly the
same rights.[309] In response,
Francione states that his theory of non-human animal rights does not
advocate treating human and non-human animals the same for all purposes,
such as giving non-human animals the right to vote or the right to a [human
scholastic] education.[310]Immediately after this claim, Francione
states “My position is simple: we are obligated to extend to animals only one
right—the right not to be treated as the property of humans.”[311]—This is the quotation that
Dunayer uses without placing it in its proper context, which is: Francione contends
that non-human animals should not have “human” rights that would not protect
their interests (e.g. non-human animals do not have an interest in a university
education)[312]and Francione repeatedly
states that if non-human animals had the one right not to be property, then
all institutionalized exploitation of non-human animals would be abolished.[313] I will address Dunayer’s
objection that more than the right not to be property would be required to protect
non-human animals in non-institutionalized settings below. Now, however, recall
that Dunayer portrays both herself and Paola Cavalieri as contending that the
right not to be property is the prerequisite for legal rights and she
portrays Francione as disagreeing with that view when it is applied to non-human
animals, but agreeing with it when it is applied to human animals.

Contrary to Dunayer’s portrayal of Francione,
Francione states that human animals have the right not to be property, this
is a basic right since it grounds all other rights, and the principle of equal
consideration of interests demands that both human and non-human animals
have this right.[314] Although Francione says that
non-human animals should only have the one basic right not to be property[315], and although he does not discuss what non-basic
rights the right not to be property encompasses with respect to non-human animals,
Francione does not rule out non-human animals having non-basic, or less basic,
rights that are encompassed by the one basic right not to be property.[316]
To the contrary, Francione begins his discussion of basic rights by using human
animals as his example and then extends the same arguments he uses for humans
to non-human animals.[317]

First, and contrary to Dunayer’s portrayal,
Francione argues that the basic right not to be property as applied to human
animals (which he later applies to non-human animals) “is a pre-legal right
in that it is a necessary prerequisite to the enjoyment of any other right.
…humans must possess a basic right not to be [used exclusively] a resource as
a minimal prerequisite to be a moral and legal person…”[318] In discussing the meaning of a basic right
as applied to human animals, Francione cites the work of Henry Shue: “Although
Shue identifies several basic rights, the most important of these is the ‘basic
right to physical security—a right that is basic not to be subjected to murder,
torture, mayhem, rape, or assault.’”[319] Still speaking of human rights, Francione continues:

…if I have no right to physical security
and you have the right to kill me at any time, then my possession of the
right to drive or vote becomes meaningless.

… The basic right not to be treated as a
thing [i.e. property] is the minimal condition for membership in the moral
community. This is the one right that we all agree is inalienable; you can
get greater protection, but if you are going to be a member of the moral
community—if you are not going to be treated as a thing that has no protected
interests—then you cannot get less protection than this right affords.

… It is important to understand that the
basic right not to be regarded as a thing is very limited and in no way
provides protection against being used to some degree as a means to the
ends of others, against every form of discrimination or unfair treatment.
But the basic right provides essential protections. It means that we may
not buy or sell humans, or use humans in biomedical experiments without
their consent, or make shoes out of them, or hunt them for sport. To possess
the basic right not to be treated as a thing means that the holder is included
in the moral community; it does not specify what other rights the human
may have.

… We might compare the moral community to
a large theater. Once you are admitted into the theater, you are guaranteed
a space somewhere to watch the performance, but not necessarily the best
seat or a particularly good seat, or even any seat at all. Maybe we will
make you stand. But to be in the theater is to have some space in which
to watch the performance; otherwise admission is meaningless.

… In order to be a member of the moral community, a human has to have
some value that is protected against being assessed by others exclusively
in terms of what will benefit them. We do not permit humans to own others
as slaves… We do not permit humans to be used in biomedical experiments
without informed consent. We do not exhibit human beings in zoos and circuses
…[320]

In other words, in Francione’s above discussion of the
basic right not to be property, as first applied to human animals only,
Francione argues that human animals have at least this right, but he is silent
on the question of what other rights humans might have. That is, Francione neither
specifies what rights – other than the basic right not to be property – human
animals should have nor what rights they should not have. He does specify that
the basic right not to be property affords humans protection from being murdered,
tortured, raped, assaulted, enslaved, vivisected, used for clothing, hunted
and exploited in zoos and circuses. With these basic protections in place for
humans, Francione leaves the question of what other protections non-basic rights
should be used to safeguard human interests open for others to answer.

Next, and very importantly, Francione
applies exactly the same basic right not to be property discussed above to non-human
animals.[321] He notes, “Animals are treated
in precisely the same way that [human] slaves were.”[322] Like Dunayer in later years, Francione argued that existing
laws that are alleged to protect non-human animals fail to do so, just as laws
that were purported to protect human slaves failed to protect them.[323] He further argues:

[W]hatever other rights humans might have,
and although we may not treat humans in the same way, it is generally agreed
upon that all humans—babies, the elderly, the retarded, the poor, the brilliant,
the person of color, the white—have at least one right: the right
not to be valued exclusively as a means to the ends of others.

In the case of animals, the principle of
equal consideration tells us that if we are going to take animal interests
seriously … then we must extend the same protection to animal interests
in not suffering unless we have a good reason for not doing so [such as
not being able to help injured or diseased non-human (or human) animals
in a forest].

… We must accord to animals, as we do to
humans, the basic right not to be treated as a resource.

… If we extend the principle of equal consideration
to animals, does that mean that they will become “persons”? Yes, it does.

… To say that a being is a person is merely
to say that the being has morally significant interests, that the principle
of equal consideration applies to that being, that the being is not a thing.

… This does not require that we treat animals in the same way that
we treat humans [or that non-human animals have exactly the same rights
as human animals:]. No one argues that we should extend to animals the right
to vote or to drive…[324]

Thus, at worst, Dunayer seriously misrepresents Francione
when she suggests that he holds that non-human animals necessarily and categorically
should only have one right. Rather, Francione’s thesis is that non-human and
human animals both have the one basic right not to be property – and this encompasses
protections from being murdered, imprisoned, raped and so on – but is silent
on the question of what other rights they may or may not have. At best, Dunayer
terribly misinterprets Francione’s views, taking brief quotations out of their
critical context, which results in a portrayal that is starkly different from
both Francione’s literal text and its spirit or intention. From this, it is
also clear that contrary to Dunayer’s portrayal, Francione does in fact regard
the right not to be property as a pre-legal right and a prerequisite
for legal rights, and this is true of human and non-human animals alike.

Dunayer depicts Francione’s statement that
non-human animals should not have the same rights (constitutional or otherwise)
that human animals have such that it appears as though Francione would deny
the rights to non-human animals “that are applicable.”[325]
In making this depiction, Dunayer quotes part of a footnote from Francione’s
Introduction to Animal Rights. That footnote and the main body of text
where it is found, however, make the argument that all non-human animals have
morally significant interests, but present-day lawyers attempting to protect
those interests with constitutional rights, other legal rights and lawsuits
is not helpful for the purpose of ending the overall problem of non-human animal
exploitation.[326] Indeed,
the accompanying main body of text addresses the question of whether or not
according the basic right not to be property to non-human animals would entail
that they have a right to sue in a court of law.[327]
Francione argues that this question misses the point, because if non-human animals
had the right not to be property, they would not be wrongfully bred into existence
in the first place and thus they would never be subject to harms that might
be redressed through the courts.[328] Obviously, this entails that
most of the remaining non-human animals would be free and not be domesticated—an
outcome that Dunayer neglects to mention was first argued for by Francione.

Moreover, using a human analogy to aid the
reader in putting aside any speciesist bias that might be present, Francione
argues that according the right not to be property would eliminate the false
“conflicts” of interest between those who were formerly property and those who
are and were always right holding persons.[329]For those beings who have
been wrongfully bred into existence in the past, but who have now been granted
the right not to be property while they are still alive, Francione says that
these beings might very well be given legal rights to sue, “but only as a ‘stopgap’
measure along the way to the abolition of this unethical practice.”[330]

Thus, Francione’s point is that according non-human
animals legal rights, constitutional or otherwise, misses the point that such
legal rights would, for the most part, be irrelevant in the scenario in which
non-human animals have already been granted the right not to be property. Recall
the above argument of Francione’s that, at a point in history when the majority
human animals still eat meat, non-human animals are not likely to be helped
with legal rights. Also recall Francione’s abovementioned argument that the
one right not to be property is sufficient to protect the interests of all non-human
animals not to be bred, killed, raped, imprisoned, subjected to pain and so
on. Finally, recall that it was Francione, not Dunayer, who originally argued
that not all interests – which are protected by rights, such as the right to
vote or attend university (Francione) or the right to a trial by jury or freedom
of speech (Dunayer) – are applicable to non-human animals. Thus, the essence
of Francione’s point is that “I am not interested in whether a cow should [have
the constitutional right] to bring a lawsuit against a farmer; I am interested
in why we have the cow in the first place.”[331]
whereas Dunayer’s depiction of Francione’s view suggests that Francione rejects
according non-human animals all applicable rights that would protect their interests.
From the above, Dunayer’s portrayal is clearly false.

Dunayer’s objection that the right not to be
property in the absence of any other rights would fail to protect non-human
animals in non-institutional settings is untenable and is based upon a misunderstanding
of moral philosophy in general and rights theory in particular. The deontological
position that it is immoral to use an individual merely as a means refers to
a wide range of scenarios, ranging from cases that could be described as a violation
of basic rights to cases that that are significantly less serious. For example,
all other things being equal[332],
if Alex insults Blair and Blair gets angry and murders Alex as a result, then
Blair is using Alex merely as a means to defending pride, asserting self-image
or venting frustration. Similarly, if a human hunter in a non-institutionalized
setting kills a non-human animal, the hunter is using the non-human animal merely
as a means to acquiring taste enjoyment or a perverse thrill. Likewise, when
an exterminator murders all the wasps who live in a nest attached to a house,
the exterminator is using the wasps merely as a means to acquiring money or
to securing the safety of the humans who live in the house in a way that does
not inconvenience them. Now, however, consider a case of using someone merely
as a means that the deontological philosopher Immanuel Kant explicitly discusses;
namely, borrowing money from an acquaintance and lying about one’s intention
to pay it back. Kant rightly argues that the liar is using the person who lends
the money merely as a means to acquiring the money. That is, unless the liar
diminished the other individual’s ability to make a fully informed and autonomous
choice via the means of providing the false information, the liar would not
acquire the end of receiving the desired money. Thus, Kant concludes that the
liar is wrongfully using someone merely as a means.[333]
Following Kant, the point is that to use someone merely as a means involves
any situation in which one individual’s interests (trivial or significant) are
being ignored or violated solely for a second individual to achieve a desired
end or goal. Now, note the simple reality that the statement “To use someone
merely as a means” is equivalent to the statement “To use someone exclusively
as a resource.” Stated more simply, both statements denote using someone as
a “thing,” as Kant argues.[334] Legally speaking, all of these statements
are equivalent to treating someone as “property,” as Francione argues with the
aid of preeminent legal scholars.[335]
Thus, contrary to Dunayer’s claims, the abovementioned angry-murderer, hunter,
exterminator and liar are all using others merely as means to securing their
own ends or benefit, despite being in non-institutional settings.

If the human who was murdered out of anger were a slave, her
or his murder would be an instance of treating the individual as legal property.
If the murdered human were not a slave, then the murderer would still be treating
the victim as a thing, as if the individual really were a piece of legal
property or a mere thing that is used to arrive at some desired outcome. The
hunted non-human animal is either the property of the state or the property
of the hunter. The wasps are the property of the house owner. It might be objected
that the person lending money (say, five dollars) as a result of being lied
to is not being treated as legal property. This is correct. The difference between
using someone as a thing by murdering her and using someone as a thing by lying
to her is the difference between basic and non-basic rights. Legally
speaking, someone who voices a relatively trivial lie is not treating anyone
as property or violating anyone’s basic rights. From the perspective
of moral theory, however, someone who voices a relatively trivial lie
is treating someone as if she or he were property (i.e. a thing) and is violating
that individual’s non-basic rights. As described above, Francione only
discusses the violation of basic rights and, as a legal matter, the fact that
the violation of someone’s basic rights entails treating that individual as
property, a thing or a resource. Thus, the point is that, contrary to Dunayer’s
claim, it is possible to treat individuals exclusively as resources in non-institutionalized
settings. The examples that Dunayer cites – such as individual instances of
hunting and wasp extermination after the legal property status of non-human
animals has been abolished – do involve the violation of the basic right not
to be treated exclusively as a resource, as argued above. As such, Francione’s
theory would abolish these practices. The interests that the basic right not
to be treated exclusively as a resource protects include the interests in continued
life, physical security, not suffering, not being subject to exploitative treatment
(that may or may not involve the loss of liberty) and so on. Thus, Dunayer’s
objection that the right not to be treated exclusively as a resource would fail
to protect non-human animals in non-institutionalized settings is faulty.

Given the preceding, Dunayer’s suggestion that
it would be impossible to resolve territory conflicts between humans and other
animals if the latter merely had the right not to be property without also having
the right to own property is moot. While it is true that Francione says that
in a situation after non-human animals have been accorded the right not to be
property, in which non-human animals were eating ornamental shrubs planted by
humans, “we should try our best to apply the principle of equal consideration”[336] and doing “That will generally require at the very least
a good-faith effort to avoid the intentional killing of animals to resolve these
conflicts, where lethal means would be prohibited if the conflicts involved
only humans”[337], the
passage in which these quotations are found refers back to an earlier passage
of Francione’s that Dunayer cites as a secondary source.[338]
In that original passage, Francione presents the “unrealistic” scenario of deers
being overpopulated[339] as a result of factors that were not caused
by humans.[340] The earlier
and the latter passage are related because they touch on the same issues of
applying the principle of equal consideration after the abolition of the property
status of non-human animals and resolving conflicts between human and non-human
animals in the same way as conflicts involving only humans are resolved. Both
passages discuss deers eating ornamental shrubs in the context of deer overpopulation.
Francione argues that it would be immoral to kill some of the deers in order
to curb their overpopulation, just as it would be immoral to kill humans in
order to curb their overpopulation.[341]
Since there is no relevant moral difference between humans and deers, Francione
concludes that the principle of equal consideration of interests dictates that
neither the humans nor the deers should be killed.[342]
“We do not think it appropriate to kill humans who damage our shrubs; that [many
human animals] think it appropriate to kill deer in these circumstances indicates
that we have already constructed the issue in a way that insures that the deer
will always lose out in any supposed balance of interests.”[343]
Thus, when Francione suggests that we “try our best” and make a “good-faith
effort,” he is referring to the fact that, in a situation of deer overpopulation,
it might or might not be somewhat difficult to find a practical solution to
the problem[344] of deer overpopulation. Regardless, Francione
argues that any such practical solution should not be lethal.[345] Similarly, in a situation of human overpopulation,
it might or might not be somewhat difficult to find a practical solution to
the problem—which might involve frustrated humans vandalizing shrubs, buildings
and other insentient property. Thus, in such a situation, we should try to apply
the principle of equal consideration as best we can and find a practical solution
that does not involve killing humans to reduce their overpopulation. Thus, in
this context, Dunayer’s mocking admonishments seem misplaced. Clearly, contrary
to Dunayer’s depiction, Francione is not saying that we should merely make an
effort not to kill the deers. Rather, Francione is saying that the deers should
absolutely not be killed and the effort required involves finding a practical
solution to overpopulation that does not violate the principle of equal consideration.[346]
As I have argued, doing so could be difficult for both human and non-human overpopulation
but, as Francione asserts, a practical solution must be pursued.

When Francione suggests relocating the deers,
Dunayer neglects to mention that Francione is only referring to the “unrealistic”
and “extreme situation” in which, after their property status has been abolished,
“the deer have become so plentiful that they are running out in front of cars
and threatening human life”.[347] To this, I would add, that
if the human pedestrians in a given city had become so plentiful that they were
spilling out into traffic and threatening the lives of (gasoline or solar-powered
auto) drivers, threatening their own lives and those of the drivers, it might
be necessary to relocate the humans. Would doing so violate the principle of
equal consideration? With respect to the deers example, Francione does not answer
this question definitively; he merely says that, in this unrealistic, extreme
situation, it “might” be necessary to relocate the deers, we should attempt
to apply the principle of equal consideration as much as the concrete circumstances
allow for, but he does not state if relocating the deers would violate this
principle.[348] Even if it
turned out that relocating deers who were running into cars did violate the
principle of equal consideration, this would say nothing about the overall validity
of Francione’s main argument, which states that applying the principle of equal
consideration now would eliminate the vast majority of cases in which the interests
of non-human animals are violated and, after this happens, any remaining
genuine conflicts of interest between humans and other animals should be resolved
in exactly the same way that conflicts that only involve humans are resolved.[349] Contrary to Dunayer’s rebuttal, Francione
does advocate always applying the principle of equal consideration and contends
that doing so will lead to the “most”[350] equitable solution possible.[351] Contrary to Dunayer, Francione does not advocate
killing deers who are overpopulated.[352] In any case, it is clear that Dunayer’s objections to Francione’s
comments on deer relocation are disingenuous to say the least.

Dunayer’s charge that Francione claims that
non-human animals have less value than human animals and the interests of the
former should be overridden in situations of conflict that do not involve institutionalized
exploitation is a gross misrepresentation of Francione’s actual view considered
in its proper context. Contrary to Dunayer’s portrayal, Francione states that
– in order to avoid a problem in Regan’s theory – Regan could claim that all
beings with inherent value have it equally in situations where they should not
be treated exclusively as resources within a context of institutionalized exploitation,
but they do not have equal inherent value in situations where their interests
conflict.[353]Immediately following
this claim, Francione states, “This reflects our intuition that it may be
permissible to award Mary a scholarship if she is better in math than Johnny,
but that it is not permissible to enslave Johnny for Mary's use simply because
he is less intelligent than she.”[354]
Thus, Francione’s statement that all beings with inherent value do not have
“the same value for purposes of resolving conflicts between rightholders” merely
refers to the claim that human and non-human animals sometimes have different
interests (e.g. in scholarships) and resolving a genuine conflict of interests
in favor of one does not violate the rights of the other if that other lacks
an interest that a right would be used to protect.[355]
This applies in the case of not according a non-human animal a university scholarship
and it applies in the case of Regan’s dog in the lifeboat example[356],
for which Dunayer’s comments have been rendered erroneous in the above section
on Appropriation of Moral Theory. Dunayer’s assertion that Francione contends
that “it may be permissible” to consider virtues such as human-like intelligence
when deciding conflicts of interest outside of institutionalized exploitation
is also refuted in the first section, above. When speaking on this specific
point, Francione does assert that it is “problematic to say that rights theory
requires that we throw the dog-or a million dogs-overboard, just as it
would be problematic to say that a human rights theory about the abolition of
human slavery requires that we always throw overboard the human with the least
intelligence.”[357] Again, Francione’s point
is that the resolution of such extremely unusual conflicts of interests does
not lead to any valid moral conclusions.[358]

Following the same pattern as above, Dunayer’s charge that Francione
holds that empirical differences between human and non-human animals might justify
their being treated differently, as in the case of relocating mice (but not
humans) to build human dwellings, fails to accurately represent Francione’s
actual view. Immediately after making the statement regarding differential treatment,
Francione states:

For example, we may decide that
the interests of particular humans in remaining in their present
homes is sufficiently strong and trumps any interest of developers (or other
potential residents) in displacing them. We may, however, determine
(as best we can) that field mice are largely indifferent to which
field they inhabit, or are more indifferent than we perceive people to be.
This difference … may justify moving the mice from one field to another.[359]

Furthermore,

[I]t would be impermissible to say that
excellence at math should be dispositive of which human we should thrown
out of [Regan’s] lifeboat. When it comes to the basic right of physical
security, such characteristics cannot be dispositive either for issues of
inclusion [i.e. whether a being is a person] or for issues of the
scope of rights [i.e. what particular rights, beyond basic rights, a person
has].[360]

Very importantly:

Therefore, in resolving conflicts between
humans and wild animals, it would be impermissible to use human “excellence”
to decide matters pertaining to the scope of the basic right of physical
security. Beyond this limitation, however, the philosophical framework
needed to decide matters affecting the scope of animal rights has yet to
be developed fully.[361]

It far exceeds the focus of this essay
to develop fully any theory of the scope of rights that should be held by
nonhuman persons.[362]

Francione then develops the discussion on the scope of non-human
animal rights merely to the narrow extent that he concludes differential treatment,
such as the relocation of mice, “may” (or may not) be justified, but Francione
does not examine or opine upon whether or not this is true. Although Dunayer’s
view that mice are not indifferent to being moved may be true, Francione (as
shown above) is silent on the matter of the scope of rights that non-human animals
as legal persons would have, including the right of mice to stay in their chosen
field. The sole point relating to the scope of rights that Francione is not
silent on is his view that empirical differences between human and non-human
animals do not justify their differential treatment where their basic rights
– such as the right to physical security – are concerned, as quoted above. Thus,
contrary to Dunayer’s rendering, Francione does not contradict himself by “balancing”
the interests of human and non-human animals in a predisposed and biased manner.
The right to stay in one’s field or nest, or keep one’s milk or wool, may be
encompassed by or automatically result from the basic right not to be property,
as discussed above, but it is clear that Francione is silent on these matters.
Dunayer’s depiction of Francione’s work is misleading to say the least.

Dunayer defines welfarism by describing what
welfarists do; they undertake to change the ways in which non-human animals
are exploited without ceasing that exploitation and, in particular, they advocate
that any given practice within this exploitation should be substituted with
a less cruel practice.[363] On the other hand, instead
of opposing the way in which exploitation is conducted, Dunayer asserts that
rightists reject the very existence of the exploitation. After defining welfarism
and rights advocacy in this way, Dunayer states “As Francione has written, a
rights advocate ‘rejects the regulation of atrocities and calls unambiguously
and unequivocally for their abolition.’”[364]
Next, Dunayer goes on to compare non-human animal welfarism with the human slavery
reformation movement (i.e. human animal welfarism).[365]
She notes how welfarism fails to pursue legal rights or emancipation for non-human
animals.[366] Importantly, Dunayer asserts, “Even if advocates
of a ‘welfarist’ measure believe that nonhumans have moral rights and
should have legal ones, their advocacy is old-speciesist.”[367] Later, she criticizes supposed “animal-rights
welfarists” who mistakenly “think that if they advocate veganism while
advocating ‘reforms,’ they honor their belief in nonhuman rights.”[368] Dunayer rejects this kind
of advocacy because the reforms welfare advocates seek violate non-human animal
rights.[369] Further, Dunayer charges
that welfarists who use the language of rights weaken the concept of “rights”
and confuse the public into believing that various kinds of exploitation are
consistent with rights. Dunayer states, “Someone who doesn’t possess a right
to life and liberty possesses no rights at all.”[370]

When speaking of a Humane Society International
employee who learned how to slaughter non-human animals “humanely,” Dunayer
states that the employee, “[i]nstead of advocating veganism,”[371] “assists the flesh industry by informing people how to slaughter
nonhumans more profitably.”[372] Speaking of how People for the Ethical Treatment of Animals
(PeTA) successfully lobbied McDonald’s (and later Burger King and Wendy’s)
to increase the size of the battery cages that they confine hens who are used
for their eggs within, Dunayer states that it violates the moral rights of hens
to confine the hens to the old standard of 48 square inches, the new standard
of 67 square inches, or to any amount of confined space.[373] Furthermore, Dunayer asserts that the emancipation
of non-human animals will be perpetually delayed unless advocates demand emancipation
and cease focusing on regulating specific practices within the larger “needless”
system of exploitation.[374]

Dunayer notes how PeTA praises McDonald’s
and others for requiring its suppliers to make changes such as increasing cage
space, the media passes this praise for McDonald’s along to the public, McDonald’s
customers feel comforted by the new “tough standards for animal welfare” and
are accordingly more willing to consume non-human animal products, and all of
this benefits McDonald’s by giving it significant good publicity compared to
the lesser economic cost of its suppliers using larger cages.[375] Similarly, regarding “humane” slaughter campaigns, Dunayer
notes that PeTA advocates exactly the same thing that those quoted in
animal agriculture industry newsletters advocate; namely, “humane” slaughter.[376]
Dunayer contends that advocacy such as this conveys the message that killing
non-human animals is acceptable if it is done with minimal cruelty.[377]

Dunayer states that welfarist campaigns are
speciesist and supports this statement by quoting an equivalent statement from
Francione, namely “treating ‘the nonhuman context differently from the human
context’ indicates ‘species bias.’”[378] Following this point, Dunayer
gives the hypothetical examples of her being in a Nazi concentration camp, or
her as a hen who is both in a battery cage and knows why this is so, and says
she would want advocates to spend their limited time and resources abolishing
all concentration camps, or abolishing all exploitation of hens, and not work
for better living conditions and more “humane” deaths.[379] Instead, Dunayer advises that non-human animal
advocates build public support for non-human animal rights and encourage veganism
in order to reduce the number of victims of exploitation and bring about the
abolition of that exploitation more quickly.[380] Contrary to the views of some, Dunayer maintains
that advocating “humane” slaughter does not respect non-human animals, as slaughtering
fails to respect a non-human animal’s right to life and, accordingly, fails
to respect the non-human animal in general.[381] Importantly, Dunayer holds that attempting
to reform situations (such as financially inefficient or wasteful cruelty that
takes place within a context of exploitation) is inherently futile.[382] Except where explicitly noted,
Dunayer fails to cite Francione when making all of the above claims.

Next, Dunayer cites Francione as observing
that rights campaigns serve to chip away at the property status of non-human
animals.[383] Immediately following this point, and without citing Francione,
Dunayer goes on to note that some welfarists claim that making the exploitation
of non-human animals more “humane” results in their property status being eroded.[384]
Dunayer objects to this view, making the opposite claim that the exploitation
of non-human animals is perpetuated when made more “humane.” She argues that
the reason for this perpetuation is that welfarist campaigns propose new ways
of continuing to exploit non-human animals as property and, in so doing, reinforce
their property status.[385] Dunayer says that when advocates undertake
welfarist campaigns without using terms such as “humane slaughter and humane
standards” – and, presumably[386],
when instead using the language of rights – they express the idea that killing
and enslaving non-human animals is moral.[387] Again, except where noted
above, Dunayer fails to cite Francione.

Dunayer also mentions that welfarists often
characterize abolitionists as supposedly being unrealistic and “all or nothing”
and they contend that pursuing welfarist regulations is practical.[388]
Dunayer disputes this view, stating the opposite claim that welfarist regulations
are impractical and counterproductive because they sustain the enslavement of
non-human animals and do not erode it. Again, Dunayer instead favors publicly
promoting the view that the enslavement of non-human animals is immoral.[389] To further prove the point that welfarist regulations are counterproductive,
Dunayer notes that advocates have consumed substantial time and resources passing,
amending, expanding and enforcing laws such as the HMSA and the AWA.[390]
Despite this, however, Dunayer notes that more non-human animals are killed
today than at any other time in the past, and in ways that involve more horrific
suffering.[391] Thus, the implication is that welfarist laws
are pointless.[392] Again,
Dunayer instead advocates actions that reduce the number of non-human animals
who are killed for food.[393] She then cites Francione’s observation that
“Exploiters of nonhumans ‘often point to welfarist reforms to defend their activities
and to seek public support for their continuation’”.[394] Without citing Francione,
Dunayer adds that welfarists claim that welfare regulations reduce the suffering
of non-human animals.[395] Refuting this, Dunayer notes
that the history of these legal regulations shows otherwise; that they are ineffective,
as does the history of laws that were used to regulate the enslavement of human
animals.[396] More specifically,
Dunayer holds that welfarist laws reduce very little non-human animal suffering
in the short term and increase suffering by perpetuating its justification in
the long term.[397] Later, in the next section
of her book, Dunayer cites Francione’s observation that welfarist laws, campaigns
and society have existed for hundreds of years.[398]
Immediately following that point, and without citing Francione, Dunayer adds
that despite the history of welfarism, the number of non-human animals who are
exploited has increased over the years.[399]

Dunayer criticizes advocates who pursue prohibitions
that fail to remove non-human animals from exploitative situations.[400] For example, Dunayer objects to campaigns that seek to prohibit
the forced molting[401] of
hens who are used for their eggs, as they are really regulations that specify
that hens receive “adequate” food and water until they are killed.[402]
Dunayer states:

The forced-molting issue epitomizes the
trade-offs that ‘reforms’ often entail. … To a rights advocate, the
whole idea of attempting to calculate which causes more suffering—torturing
and killing fewer chickens over a longer period of time [with forced molting]
or torturing and killing more chickens over a shorter period [without forced
molting]—is morally objectionable. Either way, chickens suffer and die.
Either way, their moral rights are completely violated. Remember: chickens
shouldn’t be imprisoned in the first place.[403]

Next, Dunayer rejects prohibiting the caging
of hens who are used for their eggs as welfarist.[404]
She argues that prohibiting cages fails to address the underlying cause of hens
being subject to cruelty; namely, the exploitation itself. Instead, prohibiting
cages merely focuses upon one cruel aspect of the exploitation.[405]
Dunayer strengthens this point by citing Francione’s comment that most human
animals merely question the necessity of particular practices such as branding
cows without questioning the eating of cows.[406] To this, Dunayer adds that
the importance of abstaining from eggs is obscured by a campaign to prohibit
caging hens.[407] Moreover, Dunayer argues
that prohibitions that fail to stop exploitation imply that the exploitation
can continue in a “fixed” or morally acceptable form.[408]
Again, Dunayer makes the point that those who consume animal products feel better
about doing so and do not address the inherently immoral exploitative industries
if the animal products are considered “humane.”[409]
Also, Dunayer notes that prohibiting the caging of hens who are used for their
eggs implies that confining hens without cages is moral and wrongly suggests
that supposed “free range” hens are genuinely free.[410]
Lastly, Dunayer argues “a ban that replaces one method of enslaving or killing
with another method can make the exploitative industry more profitable”[411]
and provides an example of non-cage confinement systems increasing the profits
of hen exploiters and making eggs more attractive to consumers.[412]
Dunayer notes that prohibiting the caging of hens modifies the method by which
hens are imprisoned but fails to prohibit their being imprisoned, exploited
and bred.[413] As such, Dunayer
concludes that prohibiting the caging of hens is speciesist, welfarist and is
more aptly referred to as a standard that requires hens to receive “adequate”
space.[414] Importantly, she states, “Nonhuman advocates
can’t predict such a ban’s economic consequences and shouldn’t attempt to, just
as they shouldn’t attempt to calculate which of two abusive situations causes
more suffering. They should oppose the egg industry’s very existence.”[415]

Dunayer objects to Francione’s conclusion that
prohibiting the caging of hens can be consistent with rights theory.[416]
First, she bases her objection solely on her comments discussed above.[417]
Then, Dunayer describes Francione as holding that a hen’s moral right to freedom
of movement must be completely respected in order for a prohibition on
cages to be justified.[418] Dunayer objects that completely
respecting a hen’s right to freedom of movement is impossible in a context in
which the hen is being exploited for her eggs, as captivity and the limitation
of freedom of movement are inherent to such exploitation.[419] Dunayer further describes Francione as holding that, under
a cage prohibition, hens would still be regarded and exploited as property,
but must be treated as if they were not regarded as property if the prohibition
is to be justified.[420] Dunayer
objects that since regarding hens as property is an inherent aspect of the egg
industry, it would be impossible not to treat hens as such when they are being
used for their eggs.[421] Dunayer further asserts that Francione contradicts
himself when he says that prohibitions within exploitative industries should
not substitute or endorse alternative forms of exploitation in order to accord
with rights theory, and also says that prohibiting cages is consistent with
that theory.[422] That is,
Dunayer asserts that a prohibition of cages condones other methods of confining
hens[423]:

Any distinction between a ban that permits the continued
exploitation of the animals in question (“You can’t cage hens”) and new
requirements as to how that exploitation is carried out (“You must provide
each hen with at least 124 square inches of floor space [which effectively
would eliminate cages]”) is largely academic. Francione apparently recognizes
this because he expresses a caveat: It is acceptable to “explicitly
endorse” an “alternative form of confinement” if that confinement “fully
recognizes the animals’ interests in freedom of movement.” Again, no exploitative
confinement does that.

… Any proposal to modify the confinement of exploited hens
endorses their property status.

…please ask yourself which makes more sense: to oppose a
form of speciesist exploitation or to oppose, one after another, the countless
abuses that it breeds?

… You can’t protect animals who remain
in the hands of their oppressors.[424]

Keeping hens in cages violates their rights,
but so does keeping them in cageless warehouses or breeding them in the
first place.[425]

Dunayer states that the Great Ape Project
(GAP) organization is speciesist because it only advocates personhood for certain
non-human animals for the reason they are similar to human animals. Dunayer
disagrees with advocating non-human animal personhood on the basis of similarity
to humans because doing so is an instance of promoting the speciesist criteria
for rights that Dunayer says Singer (and others) advocate[426], which I discuss and deconstruct in the above
section on the Appropriation of Moral
Theory. Dunayer notes that the GAP requires that non-human animals have
certain kinds of emotional and mental capacities in order to be part of the
community of moral equals, but Dunayer counters that the mere capacity to experience
(i.e. sentience) is sufficient for moral equality.[427] She notes that the GAP justifies it stance
that non-human great apes are persons with scientific evidence of their complexity[428]
but objects that this suggests “that most nonhumans have no claim, or only a
weak claim, to legal rights until some indeterminate amount of future research
[i.e. vivisection] has demonstrated their complexity to the satisfaction of
some indeterminate number of humans. Second, there’s the suggestion that complex
individuals are more entitled to legal rights than supposedly simpler ones.”[429] Dunayer states that it is easier for most humans to see non-human
great apes as distinct individuals because they look and behave similarly to
humans, and contends that using this situation to help secure them rights is
acceptable, but not if it is implied that non-human great apes have greater
individuality, and accordingly have a greater entitlement to rights, than other
non-human animals—something that the GAP does.[430] Dunayer asserts that non-human
great apes are not more or less entitled to rights due to their distinct personalities,
habits, ideas and other individual traits.[431] She maintains that such criteria are irrelevant to whether
or not non-human great apes have rights.[432] Dunayer asserts that the only relevant criterion
for non-human great apes and all other non-human animals having moral equality
is sentience.[433] Dunayer
writes, “As expressed by Gary Francione, denying personhood to nonhuman great
apes is ‘irrational in light of the demonstrated mental and emotional
similarities’ between them and us.”[434] Then, without citing Francione,
Dunayer continues by stating the similarities that Francione speaks of – except
for sentience – are irrelevant to according basic rights.[435] She concludes that it is also “irrational” to deny basic rights
to non-great apes such as crickets, since they are also sentient.[436] Alluding to her previous
rejection of other proposed criteria for rights (such as religious beliefs,
moral agency, supposedly greater sentience, self-awareness and inherent value—as
discussed and deconstructed above)[437],
Dunayer states, “linking basic rights to human-like mental capacities is biased
and logically inconsistent.”[438] She continues:

I’m not saying that we must emancipate either everyone or no one. …emancipating
African-Americans didn’t rely on racist arguments, and emancipating the
first nonhumans shouldn’t rely on speciesist ones. … I completely support
efforts to obtain great-ape personhood, provided that they’re non-speciesist.
…without benefiting some animals at the expense of more-numerous others
… without perpetuating the very speciesism that personhood for any nonhumans
should erode rather than reinforce. … Why not seek great-ape personhood
in nonspeciesist ways? …arguing for great-ape personhood doesn’t require
speciesist argumentation of the sort presented by GAP. …egalitarian principles
[i.e. equality and respect regardless of ‘intelligence’ or capacity to ‘appreciate’
life] could be applied in a legal case seeking rights for, say, chimpanzees
or dolphins. …arguing based on sentience alone might be less threatening
to judges than arguing based on human-nonhuman similarities. … GAP enforces
a speciesist hierarchy, with great apes ranking above all other animals.
If a judge rules that a chimpanzee is a person because chimpanzees are so
human-like, yet another speciesist precedent will be set. … Humans continually
would judge nonhumans (especially captives) by the extent to which they
demonstrate human-like capacities. …advocates should [instead] argue that
… chimpanzees are clearly sentient.[439]

Dunayer maintains that activism on behalf
of non-human animals that is not speciesist serves to further the goal of freeing
them from exploitation.[440]
If done correctly, she says that one way of furthering the goal of non-human
animal emancipation is the use of abolitionist prohibitions.[441]
In order to be abolitionist, Dunayer states that a prohibition must not leave
non-human animals in an exploitative situation.[442] Moreover, she contends that
abolitionist prohibitions free non-human animals, prevent or cease their abuse
and do not mitigate their abuse.[443]
Dunayer states: “All abolitionist bans protect at least some animals from some
form of exploitation. They prevent animals from entering the situation of exploitation
and may also remove current victims from that situation.”[444]
A prohibition that satisfies Dunayer’s definition is one that precludes the
use of elephants in entertainment, as it protects elephants from being exploited
in forced performances.[445] The same is true of a prohibition of vivisection
conducted upon non-human primates.[446] Likewise, Dunayer states that a prohibition of bear hunting
would be abolitionist[447]:
“Such a ban doesn’t state, ‘Bears are persons, not property,’ but it’s consistent
with their not being property. … Abolitionist bans respect the moral rights
of the nonhumans they’re intended to protect.”[448] Other prohibitions that Dunayer
says qualify as abolitionist are forced cock fighting and leg-hold traps—prohibitions
that Dunayer claims can be enacted and implemented quickly, despite the false
claims of welfarists that non-human animal welfare measures can be enacted and
implemented more quickly than abolitionist measures.[449] Other prohibitions that satisfy Dunayer’s
criteria “include bans on exotic pets, rodeo, the calf-flesh industry, seal
hunting, “fur farming,” wolf killing, greyhound racing, dog breeding, and cosmetics
testing on nonhumans. … Abolitionist bans on U.S. horse slaughter and ‘foie
gras’ production could be won in the near future…”[450] Dunayer states that although abolitionist,
prohibitions against the pig meat, egg and cow’s milk industries are currently
impossible due to the fact that many human animals have not yet rejected their
products.[451] Accordingly,
Dunayer suggests the promotion of veganism and public opposition through boycotts
as means to eventually abolish those industries.[452]

Dunayer distinguishes between the promotion
of veganism and boycotts of eggs, veal and other particular products.[453] It is unclear why these boycotts should be
distinguished from the larger boycott of all non-human animal products called
“veganism.” Dunayer also advocates boycotts of “zoos, aquaprisons, circuses,
rodeos, horse racing or ‘swim with the dolphins’ tourist attractions. Activists
can also boycott particular companies, restaurants, or stores…”[454] Again, it is unclear why
these boycotts should be distinguished from the promotion of a vegan lifestyle
that respects non-human animal rights. Boycotts that Dunayer contends are not
abolitionist include those against eggs produced by caged chickens but not against
supposed “free range” eggs, those against white meat from calves who are confined
to crates but not red meat from calves who are not confined to crates, and those
against companies that do not have “anti-cruelty” or “humane” standards but
not against those that do have those standards.[455] For, Dunayer explains, such boycotts allow the exploitative
industries to continue and are therefore not abolitionist.[456] Dunayer then returns to the
promotion of a vegan lifestyle as a means for activists to further abolition.[457] She contends that part of a vegan lifestyle
includes not “buy[ing] nonhumans (except to save them from abuse or death)”.[458] Moreover, Dunayer correctly
notes that promoting the consumption of honey, “free range” eggs and cow meat
is not vegan advocacy[459]:
“Non-vegans need to phase out or immediately illuminate animal-derived
foods, not substitute some for others.”[460] Dunayer asserts that slaughtering
chickens violates their right to life regardless of whether or not they are
rendered unconscious, and rights advocates demand the end of slaughtering and
enslavement and the recognition of non-human animal rights to life and liberty.[461]

After providing another example of a
voluntary abolitionist prohibition that would have dismantled every “animal
agriculture” program in every U.S. state’s primary land grant universities[462], Dunayer states that this prohibition would
have involved: “No welfarist bargaining away of nonhuman rights. No reluctance
to state the true goal (‘an end to the animal industry’). … [The campaign to
prohibit “animal agriculture” programs] generated discussion that got people
to question nonhuman exploitation itself.”[463] In my view, another way of saying this is
that the prohibition campaign had a positive educational effect on the public
even though the prohibition itself did not succeed. Again, Dunayer holds that
animal rights advocates “don’t conceal or downplay their liberationist goals
when addressing people who don’t support, or who actively oppose, nonhuman rights.”[464]

Francione presented essentially the same definitions
of non-human animal welfare and rights as Dunayer, compared non-human animal
welfarism with human slavery and human slavery laws and explained the failure
of non-human animal welfare laws to benefit non-human animals (including respecting
their rights, abolishing their property status and ending their exploitation
and suffering).[465] The difference is, unlike
Dunayer’s unreferenced[466] claims, Francione’s are defended
with argumentation and evidence, are thoroughly and rigorously explained and
were made years earlier.[467]
Moreover, Dunayer’s comments regarding advocates who both believe that non-human
animals have rights and use rights-language but who nevertheless pursue welfarist
reforms (because, in part, they believe that making the exploitation of non-human
animals appear more “humane” results in their property status being eroded)
parallel exactly Francione’s thorough description, analysis and refutation of
“New Welfarism.”[468] Again,
the only difference is that, unlike Francione’s rigorously argued-for conclusions,
Dunayer’s claims are curt and more or less undefended. Dunayer’s claim that
an individual cannot have any rights without first having basic rights is also
an echo of Francione’s analysis.[469] Dunayer’s suggestion that,
in reality, “humane” slaughter laws merely serve to maximize industry profitability
and perpetually delay the abolition of non-human animal exploitation is also
taken from Francione.[470]
As will be discussed further below, Francione opposes welfare regulations that
increase cage-size specifications for hens who are used for their eggs and argues
that PeTA’s successfully pressuring McDonald’s to do so illustrates the
failure of non-human animal welfarism.[471] Francione wrote in 2000:

[A] proposal to increase the size of cages
used to hold laying hens assumes the legitimacy of treating animals as property;
it is aimed at regulating our ownership of animals. A proposal that we abolish
the egg industry altogether as a violation of the basic right of
animals not to be used as our resources is an animal rights position.[472]

Moreover, it was Francione not Dunayer, who
originally argued that PeTA’s positive media release for McDonald’s and
its decision to increase the size of its battery cages benefited McDonald’s
by making its products appear to be more acceptable to consumers.[473] Similarly, Francione first observed that
both PeTA and non-human animal exploiters say (and often do) the same
things regarding welfarist measures.[474] Likewise, Francione first
argued that the “educational value” or building of public support that is generated
when one attempts to chip away at the legal property status of non-human animals,
and advocating veganism, are productive whereas welfarist campaigns are counterproductive
in practice and immoral in themselves.[475] Finally, Francione first observed that the only non-human animal
suffering that – in theory – welfarist changes are capable of preventing is
suffering that is inefficient, wasteful or gratuitous.[476] Dunayer’s discussion of whether
or not it is futile to attempt to implement and enforce prohibitions against
actions that cause inefficient or wasteful suffering misses the point: even
successful implementation and enforcement of such prohibitions merely serves
to perpetuate the exploitation of non-human animals and reinforce their property
status, as Francione originally argued.

Dunayer’s discussion of welfarists who charge
abolitionists with unrealistically seeking “all” (total abolition) or “nothing”
(continued suffering and exploitation) is borrowed from Francione’s work without
any citations.[477] Dunayer’s comments that welfarism is impractical
whereas abolitionist measures are practical are likewise taken from Francione
without reference.[478] Dunayer’s
argument that, despite the considerable number or years spent on welfarist laws,
more non-human animal deaths and more severe suffering have ensued—thus illustrating
the futility of welfarism, is also appropriated from Francione without credit.[479] Dunayer’s related comments that the history
of welfare regulations, whether applied to non-human or human slavery, shows
their infectivity are again obtained from Francione.[480] So too with the point that welfare regulations
reduce a minuscule amount of suffering at the cost of perpetuating the exploitation
and the immense suffering that goes along with it in the long-term.[481]
As before, Dunayer’s appropriated analysis constitutes a very simplified version
of Francione’s.

It is ironic that Dunayer’s objections regarding
Francione’s proposed abolitionist prohibitions are peppered with unreferenced
insights from Francione’s writing. For example, Dunayer’s comment – that certain
prohibitions such as banning the withholding of water (in forced molting[482]) can be understood as animal welfare standards that specify
and regulate things such as the amount of water non-human animals receive –
is Francione’s original insight.[483] Furthermore, Dunayer’s discussion of “trade-offs,” replacing
one method of exploitation with another and modifying methods of exploitation
are also reflective of Francione’s work.[484] For example, Dunayer’s condemnation of replacing
cages with alternative confinement systems for hens who are used for their eggs
is found in Francione’s work.[485]

Regarding Dunayer’s objections to Francione’s view that – under
highly qualified and limited circumstances – a campaign that seeks a prohibition
against battery cages may be abolitionist, Dunayer both misinterprets Francione
and makes logical fallacies in her rebuttal. While Dunayer asserts without rationale
that prohibiting cages, even in narrowly defined circumstances, fails to address
the exploitation that causes hens to be subject to cruelty, Francione offers
an argument that concludes such a prohibition could serve to chip away at the
property status that is the underlying cause of the hens’ exploitation, which
subsequently makes them subject to cruelty. While Dunayer asserts that even
a carefully crafted prohibition against cages only focuses upon one aspect of
hens being exploited for their eggs, Francione notes that the aspect in question
is liberty (of movement) and completely respecting the interest involved in
that aspect of exploitation results in the overall property status of hens being
partially removed. To understand why Francione draws these conclusions, it is
necessary to examine his analysis.

Francione’s view that a prohibition against
battery cages – with certain provisos – may be abolitionist is based on his
view that the prohibition could satisfy certain criteria that stem from two
central pillars of rights theory. These pillars are that the property status
of non-human animals must be abolished and, when pursuing this goal, the interests
of non-human animals cannot be violated in the present in order to prevent the
interests of other animals from being violated in the future.[486]
From these central features of rights theory, Francione derives and argues for
five criteria that must be met in order for a legal measure intended to benefit
non-human animals to be productive and consistent with rights theory. The first
of these criteria is that “An Incremental Change Must Constitute a Prohibition,”
but it was Francione and not Dunayer who originally argued that this criterion
on its own is not enough.[487] Francione’s second abolitionist
criterion is that “The Prohibited Activity Must Be Constitutive of the Exploitative
Institution”. Francione argues that a proposal “to reduce the number of hens
confined in a battery cage (floor space usually is a twelve-inch square) from
four hens to three hens [thus increasing cage space for the remaining hens]”,
and a proposal to increase the size of battery cages from 144 to 196 inches
of floor space do not satisfy this criterion.[488] By the application of Francione’s
abolitionist criteria, all similar welfarist proposals such as increasing battery
cage size from 48 to 67 square inches would likewise be rejected, contrary to
Dunayer’s innuendos. Francione notes that replacing battery cages with coops
that afford more movement does satisfy the second criterion, but he also argues
that the first two criteria are insufficient to respect rights on their own.[489]

The third criterion that “The Prohibition Must
Recognize and Respect a Noninstitutional Animal Interest”[490]
is relevant to Dunayer’s view that the economic consequences of a prohibition
against battery cages cannot and should not be predicted. In an example to the
contrary, Francione illustrates the third criterion with a class of prohibitions
that fail to satisfy it: “Temple Grandin’s animal-handling guidelines, which
have been adopted by the American Meat Institute and endorsed by McDonald’s,
are based on the notion that animal welfare is important because failure
to observe certain standards will result in carcass damage and worker injuries
… [that can] ‘mean the difference between profits and losses…’”[491] Thus, Francione observes
that such welfare guidelines help non-human animal exploiters maximize the economic
value of their property[492]
and “have nothing to do with recognizing the interests of the animals—except
instrumentally as means to human ends”[493], something Francione rejects.
Francione states: “The test for [respecting a non-institutional interest] …
necessarily admits of degrees[(494)]:
if the interest imposes a significant cost or tax on the ownership of animal
property under circumstances in which the cost is clearly not justified in light
of the ‘benefit’ to the property owner, then the interest recognized is extra-
or noninstitutional.”[495] Dunayer’s claim that the economic consequences
of a prohibition cannot be predicted is anticipated by Francione:

The test [for respecting a non-institutional
interest] is simple to apply because, at least in theory[(496)], it requires
merely that we identify what costs are imposed by the regulation on property
ownership and whether those costs will significantly[(497)]
exceed any benefit that animal property owners derive. In most cases,
the property owners will be more than pleased to identify such regulations
through their opposition to the proposals.[498]

Francione anticipates the possible objection
that, although an animal exploiter’s vocal opposition to a given proposal is
an indicator that the opposition is attributable to the exploiter’s own
economic self-interest, the truth of this motivation is not necessarily guaranteed.[499] Hence, Francione advises non-human animal
rights advocates to also make their own assessments of whether the costs to
exploiters significantly[500] exceeds any benefit to them—which would in
turn indicate that the interest that the proposed change protects is a non-institutional
interest.[501] Anticipating
a related objection, Francione states:

The property owner may, of course, try
to pass such costs along to consumers. The problem is that the demand for
just about any food is elastic and will change as the price changes. So,
for example, if the costs of the regulation added $3 per pound to the price
of hamburger, many people would shift to another food.[502]

If a sustainable niche market could be found
that was willing to pay more for “free-range” meat or eggs, the above analysis
of Francione illustrates that the cost to exploiters would be trivial[503]
and therefore the proposed change would not protect a non-institutional
interest. As such, Francione’s view requires that such a proposal be
rejected. In other words, Francione absolutely rejects replacing battery cages
with alternative systems of confinement even if the public is willing
to pay more for “free-range” meat and eggs. Note that Francione’s economic test
for whether a given proposal would protect a non-institutional interest of a
non-human animal does not require one to predict economic consequences
or the future price of meat and eggs. The reason why this is so is found in
Francione’s fifth abolitionist criterion, discussed in subsequent paragraphs.
(The fourth abolitionist criterion states that if the non-institutional interests
of non-human animals are to be recognized, then these interests cannot be violated,
or traded away, just because doing so would secure a benefit to humans.[504] For example, a prohibition against religious animal sacrifices
benefits those in power who do not regard this use of animals as “necessary”
to produce a socially acceptable benefit that is recognized by those in power.[505]
Thus, even though it protects a non-institutional interest, this prohibition
of animal sacrifices would not satisfy the fourth abolitionist criterion.[506])

Francione’s fifth and final criterion that
any abolitionist change must satisfy—which, like the others, is grounded in
the central features of rights theory—is “The Prohibition Shall Not Substitute
an Alternative, and Supposedly More ‘Humane,’ Form of Exploitation.”[507]
According to Francione, replacing battery cages with larger cages, coops or
any other confinement system – with the “possible” exception of
the territory arrangement that would exist in the environment if humans never
took any eggs – would reinforce and explicitly endorse the property status of
hens who are used for their eggs.[508] This is because their interest in freedom
of movement would still be impinged upon for the purpose of taking eggs from
them and this violates the central features of rights theory that inform Francione’s
analysis.[509]

Francione’s abolitionist criteria are incremental. As
such, following them in any given campaign to impose a legal restriction on
non-human animal exploiters will not result in the complete abolition of non-human
animal exploitation. Following Francione’s abolitionist criteria will, however,
result in the legal property status of non-human animals being chipped away
such that many similar incremental steps will together eventually result in
the total abolition of non-human animal exploitation. Importantly, when discussing
abolitionist criteria three through five, Francione does state that the interests
that the criteria protect are interests that the non-human animal would have
if he or she were no longer property:

If, for example, laying hens were removed completely from
the battery cage and placed in an environment where the treatment they received
was consistent with that which these animals should receive were they no
longer regarded as human property—that is, in a way that respected completely
their interest in bodily movement—then that change would qualify [as abolitionist].

…

if egg batteries are abolished but hens, still regarded
as property, are kept under circumstances that would be appropriate were
their property status abolished entirely (i.e. they have freedom of movement
and are otherwise kept as they would be were they no longer regarded as
property), then, although the hens will continue to be exploited as property,
the prohibition of battery cages recognizes an interest that the animal
would have were the animal no longer regarded as property…

…

If animal interests are to be taken seriously, then, to
the extent that the law regulates the use of animal property beyond what
is necessary to exploit the animal property, that regulation must be held
as eliminating the property right [of humans over non-human animals]
to the extent necessary to protect the [non-human animal] interest.
Otherwise, the victory for animals will be illusory: as soon as the rights
of human property owners are triggered, the animal interest will be ignored.
Accordingly, the interest of the animal must be seen explicitly as an interest
that is to be protected as would a true “right” within the legal system.
The interest would not be a “right” in the full sense, in that animals would
not yet possess the basic right not to be regarded as property … but animals
would have something approximating nonbasic rights, something that could
be said to be building blocks of the basic right not to be property. These
nonbasic “rights” must, however, be treated as though they were rights,
in the sense that they must be regarded as protecting interests from any
interests balancing [or trading away of interests].

…

Every time we recognize such a right, we
move away from treating the being exclusively as a means to human ends;
the problem is that the being’s most fundamental interests in not being
eaten … have not yet been recognized. These incremental measures may be
seen, however, as recognizing pieces of the basic right not to be regarded
as property. So, although these interests represent nonbasic rights in one
sense, the interests are more properly regarded as “parts” of the basic
right of animals not to be treated exclusively as means to human ends. …[This
is] a “protoright” because it functions like a right but runs to the benefit
of a nonrightholder, properly speaking. …[A protoright] is something different
from a right and something very different from what now exists under legal
welfarism.[510]

In the case of abolishing battery cages without
replacing them with an alternative and supposedly more “humane” form of confinement,
and where the other four abolitionist criteria are also abided by, Francione
concludes that the proto-right to liberty (of movement) is being respected because
the prohibition completely “eliminates the exploitation involved in the confinement
system through a full recognition of the interest of the hens in their freedom
of movement.”[511]

It is of paramount importance that:

The animal advocate must not herself suggest an alternative
[form of exploitation] and must not agree to any alternative offered by
the exploiter. To do either would involve the rights advocate in sacrificing
the basic right of animals not to be property in order to secure a less-than-basic
protoright that … [supports] the notion that “bettering” the system of animal
slavery can render it acceptable, which is to reinforce the notion that
animal slavery itself is acceptable.

…

If animal exploiters … eliminate the battery
cage in favor of some other form of hen enclosure that continues their status
as property and does not fully respect their interest in, for example, bodily
integrity [or movement], that does not necessarily undermine the incremental
eradication of property status. … The battery hens will in all likelihood
be placed in an alternative form of confinement. What the exploiter does
in addition to [discontinuing the use of cages] cannot fairly be said to
be a consequence of the rights advocate’s action, unless, of course,
it is the rights advocate who actively urges this substitute exploitation.
But in the absence of such support for alternative forms of exploitation
… the rights advocate who obtains … a prohibition on various practices that
are constitutive of factory farming has nevertheless achieved one incremental
step in the general eradication of the property status of the animal through
the recognition of a noninstitutional, nontradable interest that is based
on the inherent value of the animal.[512]

Crucially:

What is essential in seeking any incremental
change is that rights advocates recognize that their efforts must be accompanied
by a continuing and unrelenting political demand for the complete
eradication of the property status of animals.[513]

The implication of all of the above is, when a rights advocate
simultaneously demands an end to the use of battery cages (without suggesting
an alternative form of confinement) and an end to all exploitation of non-human
animals (which includes any other confinement system) and the exploiter
fails to meet this demand but instead responds by implementing an alternative
form such as coops, Francione’s theory requires the rights advocate to
continue to respond by relentlessly demanding an end to the use of the coops
and any other system of confinement, coupled with the repeated demand to abolish
the property status of non-human animals completely. Contrary to Dunayer’s suggestion,
whether or not the exploiter in this case increased the price of eggs to cover
the cost of the new coops, and whether or not a pricier “free-range” egg market
could be found, the rights advocate neither has to predict this in advance nor
predict any other economic consequences of the prohibition. Rather, the assessment
of a prohibition’s cost to the exploiter can be both tentatively approximated
beforehand and known with certainty after the exploiter has responded.
Afterwards, if the exploiter responds by replacing the cages with an alternative
form of confinement and this does not cause the economic value of the exploiter’s
slaves to reduce due to the “free-range” market, then it is clear that the cost
to exploiters would be trivial under Francione’s analysis discussed above. As
such, the exploiter’s response of replacing the cages with the alternative form
would fail to protect a non-institutional interest of the hens. Again, Francione’s
theory requires that the activist never propose and always reject any alternative
form of exploitation. Thus, under Francione’s theory, the rights activist must
reject the exploiter’s new use of an alternative confinement system and continue
to demand the complete abolition of both all forms of confinement and all non-human
animal exploitation in general. Clearly, Dunayer’s objections involve a gross
misinterpretation of Francione’s views.

Francione’s analysis (described above) of whether
or not a legal measure that is intended to benefit non-human animals is productive
and consistent with rights theory is practical, incremental and highly credible.
In light of this analysis, Dunayer’s objections to it collapse like a house
of cards. Dunayer’s charge that the importance of abstaining from eggs is obscured
by a campaign to prohibit battery cages ignores Francione’s call for education.
Francione acknowledges that the likelihood of a campaign that is consistent
with rights theory (i.e. prohibiting battery cages without replacing them with
coops or any other form of confinement) succeeding in this point of history
is low.[514] Nevertheless, Francione holds that such campaigns
can be beneficial because they always include a call for the complete abolition
of the property status of non-human animals and they serve to educate the public
about this, thus provoking an ethical vegan social movement.[515]

Furthermore, Dunayer’s assertion that a prohibition
against battery cages – even with Francione’s strict qualifications – implies
that the exploitation of hens can continue in a “fixed” or morally acceptable
form because the hens are still being exploited for their eggs ignores the fact
that their interest in liberty of movement is being completely respected,
and this constitutes a proto-right or a piece of their property status being
removed in an incremental fashion. That is, the prohibition entails that
non-human animal exploiters are markedly and exceedingly less capable of using
the hens in a way that property-law normally permits and encourages; benefiting
the property owner and safeguarding her or his right to use the property in
a way that maximizes efficiency of time, owner-autonomy and economic value.
One indivisible interest of the hens is being completely respected (justly)
at the expense of the owner losing her or his interests in profit and unfettered
autonomy. The inherently incremental and progressive nature of Francione’s abolitionist
method entails that the hens will not continue to be exploited for their eggs
or anything else: one interest after another will be protected until hens and
every other non-human animal are not used as property at all.[516] In this abolitionist context, beginning the
incremental process by completely respecting the interest in freedom of movement
with a view to eventually respecting all interests does not, contrary to Dunayer’s
suggestion, imply that confining hens without cages in a supposedly “free range”
environment is morally acceptable. Contrary to Dunayer’s claim, Francione’s
guidelines for progressive abolitionist change obviously do not permit replacing
one method of enslaving or killing with another, modifying the conditions of
confinement or imposing standards that require non-human animals to receive
adequate space to exploit them in. Conversely, Francione’s guidelines ensure
that non-human animals will eventually no longer be bred, imprisoned or exploited
at all. They ensure (for example) that hens receive, as a first step among many,
the space that is adequate to completely respect their interest in freedom of
movement—that is, the territory arrangement that would exist in the environment
if human animals never took any eggs or otherwise exploited them. Dunayer’s
objection that doing so (in a context of exploitation in which eggs are still
being taken and consumed by humans) would be impossible is unsound:

Before chickens were artificially bred by humans, their ancestors
were jungle-fowls who nested in trees. If birds such as these were being exploited
for their eggs in battery cages today, the result of Francione’s suggested prohibition
would be that the birds would be removed from the cages and, after successful
rehabilitation, returned to their jungle homes. The birds would be free to go
anywhere in their environment they chose without any human intervention. There
would be no fences or any other system of confinement. Humans would not touch
or disturb the birds, save for stealing their eggs from their nests when the
birds were away. This would still constitute wrongful exploitation, and Francione
explicitly states this. Yet, this prohibition against battery cages would successfully
respect the hens’ interest in liberty of movement, and protect an indivisible
proto-right, in a context in which the hens are still being exploited as property.
After this prohibition has been successfully achieved, the rights activist proceeds
to secure additional interests for the birds until they are no longer exploited
at all. This is the nature of Francione’s suggested prohibition.

Again, Francione wholly acknowledges that a campaign to introduce
such a prohibition is unlikely to succeed at this point in history, and focuses
instead on its important educational value. Contrary to Dunayer’s objection,
however, Francione’s suggested prohibition against battery cages is not impossible
in principle: it could be achieved now by an eccentric millionaire or
in the future by an animal exploiter who is forced to follow the requirements
of the above prohibition in a world in which a significantly larger proportion
of the public has already accepted animal rights. Even in that future context,
implementing Francione’s suggested prohibition might put animal exploiters who
use battery cages out of business—a goal that Francione says must be explicitly
stated by the rights activist. In any case, Dunayer’s claim that captivity and
the limitation of freedom of movement are necessary components of the
immoral practice of exploiting hens for their eggs is clearly unsound.

It might be objected that it is not the ancestors
of modern chickens who are kept in battery cages. Since modern chickens have
been artificially genetically selected for centuries, they are inherent slaves
who have inborn traits that would frustrate their ability to survive and thrive
in a non-exploitative context. Since the artificial genetic selection that they
have been subject to cannot be undone, the rights of modern chickens can never
be fully respected. Similarly, after human slavery was abolished in the United
States, the fact that some slaves had been maimed and mutilated entailed that
their rights could never be fully respected.[517]
This limitation, however, was solely due to unchangeable and unwanted circumstances,
and not the prohibition against human slavery that abolitionists achieved. Thus,
after the abolition of human slavery, the ideal of fully respecting the
rights of former slaves as much as genuinely unchangeable[518] circumstances allowed for
was pursued. Regarding the future time after the complete abolition of all
non-human animal exploitation has been achieved, Dunayer borrows Francione’s
insight that any remaining non-human animals who could not be rehabilitated
would be placed in sanctuaries that, in Dunayer’s words, “as much as possible
… provide natural fulfilling environments.”[519] As was the case in human
slavery, any remaining non-human animals who were no longer property would have
their rights respected as much as genuinely unavoidable circumstances allowed
for. Since modern chickens who are exploited in battery cages have been artificially
genetically selected for centuries, if they were returned to the jungle they
would probably not survive. Hence, after complete abolition, they would be placed
in sanctuaries that are acceptable to genuine abolitionists. Before complete
abolition when non-human animals are still being exploited, but after a prohibition
against battery cages that satisfies Francione’s stringent criteria, the hens
would be placed in an environment that in all respects was the “same” as a sanctuary
environment, with the exception that eggs would be stolen. Again, although
the hens would still be wrongfully exploited as property in this way, their
interest in liberty of movement would be fully respected, and this would constitute
an incremental step towards respecting all of their interests.

Note that both genuine sanctuaries and “environments-that-mirror-sanctuaries-with-an-important-exception[520]”
have fences, sometimes to protect against predatory non-human animals such as
free-living coyotes. In order to respect the interests of hens as much as possible,
the fences that both genuine sanctuaries and “environments-that-mirror-sanctuaries-with-an-important-exception[521]”
would encompass areas that are appropriate to the normal ranging behaviors of
their species. In this context, the fences do not constitute alternative confinement
systems: just as genuinely unchangeable and unwanted circumstances prevented
former human slaves from having their rights fully respected[522], genuinely unchangeable and
unwanted circumstances (that do not arise from the speech or actions of rights
activists) may dictate that hens who were formerly exploited in battery cages
are – instead of being placed in a fenceless jungle amongst predators
– placed in a fenced environment that is the same as a sanctuary environment,
save for the previously mentioned exception. Again, the only reason why the
exception of humans stealing and consuming eggs is present is because the prohibition
in question is incremental and, as such, it does not result in the complete
abolition of all non-human animal exploitation. Additional incremental prohibitions,
however, will together result in complete abolition. In any case, Dunayer’s
objection that Francione’s suggested abolitionist prohibition against battery
cages would be “impossible” is unsound.

Thus, contrary to Dunayer’s false depiction,
Francione does not contradict himself by suggesting that prohibitions should
substitute or endorse alternative forms of exploitation. Contrary to Dunayer’s
suggestion, Francione does not suggest creating new requirements regarding cage
sizes or guidelines about how confined exploitation is to be carried out. Francione
does not propose modified confinement. Dunayer asserts that it makes more sense
to oppose one entire form of non-human animal exploitation, but Francione does
just that: directly in 2000[523] and indirectly in 1996.[524] Therefore, in light of Francione’s analysis
of abolitionist incremental change, Dunayer’s objections to it disintegrate
into misrepresentations and appropriations.

It should also be noted that Francione’s incremental
abolitionist criteria are tentative[525] and Francione cautions:

[T]he rights advocate may reasonably conclude
that all attempts to eradicate the institutionalized exploitation
of animals through incremental legislation and regulation do not, at this
point in the history of the human / nonhuman relationship, represent the
most efficacious use of temporal and financial resources. … But this does
not mean that the rights advocate is left without an incremental program
of practical change. On the contrary, the rights advocate is left with a
most important and time-consuming project: education of the public through
traditional educational means—protest, demonstrations, economic boycotts,
and the like—about the need for the abolition of institutionalized
exploitation on a social and personal level. … Moreover, in light of the
structural defects of animal welfare, any legislative or judicial campaign
will need to be accompanied by a vigorous educational campaign.[526]

…

I have offered several criteria that are
intended to ensure that incremental measures erode the property paradigm,
not support it. Although I hope that my criteria are useful, they are secondary
to the need for an incremental eradication of the property status
that causes the pain and suffering in the first instance.[527]

In other words, the essence of Francione’s
view on incremental abolitionist change is that it should be accomplished through
education. If, however, one is bent on perusing legal and regulatory change
then Francione argues that one must follow his criteria in order for the change
to be abolitionist. Following the criteria is not an absolute, objective guarantee
that a change will be abolitionist, but only constitutes a useful negative test
or imprecise guide, and the rights activist must further contemplate and examine
whether the primary goal of incrementally abolishing the property status of
non-human animals is actually being served.[528]
It is in this spirit that Francione presents his example of abolishing battery
cages without replacing them with an alternative form of confinement, a spirit
that Dunayer ignores.

All of Dunayer’s objections to the GAP discussed
above are found in Francione’s Introduction to Animal Rights.[529] As Dunayer notes, in “Personhood, Property
and Legal Competence,” Francione argues that the property status of non-human
great apes ought to be abolished and replaced with legal personhood status,
and this would constitute an incremental step to the complete abolition of all
non-human animal exploitation. It was Francione, however, not Dunayer, who originally
argued that sentience should be the only criterion that non-human great ape
personhood is based upon. Essentially, Francione’s argument, published in 1994,
is this. Both human and non-human great apes are sentient. Also, both human
and non-human great apes are genetically, psychologically and behaviorally similar.
Given these similarities, it would be irrational, arbitrary and contradictory
to put one group of great apes (i.e. human) into one legal class (i.e. persons)
and another group of similar great apes (i.e. non-human) into a different, opposite,
legal class (i.e. property). Thus, to avoid this contradictory, arbitrary and
irrational double standard, both groups of great apes should be placed in the
same legal category; persons. Francione stresses that the only morally relevant
similarity between human and non-human great apes is their sentience, thus leaving
the possibility open that other non-human animals will become legal persons
as well.[530]

Mark the difference between the above non-speciesist
argument of Francione’s and the one that says human great apes are legal persons,
non-human great apes have many of the same, or similar, mental and genetic characteristics
that human great apes do, therefore non-human great apes should have the same
personhood status as humans. This argument makes the standard of rights human-centric
and contains all of the pitfalls that Francione first drew attention to and
Dunayer appropriates.[531]
Moreover, although Francione does not thoroughly discuss the views of Steven
J. Wise, Wise’s views about non-human great ape personhood can be viewed as
making the GAP’s guiding principles and arguments more specific and practical.
Indeed, many of Francione’s arguments against the GAP can be directly used against
Wise’s arguments.[532] Dunayer’s objections to Wise’s views are
more specific than Francione’s objections to the GAP, but if Dunayer’s objections
to Wise were generalized they would become similar to Dunayer’s objections to
the GAP. These, in turn, are similar to Francione’s as noted above.

From the above summary of Francione’s argument
in “Personhood, Property and Legal Competence,” and from the abovementioned
arguments of Francione’s in Introduction to Animal Rights, it is clear
that Dunayer borrows the following points from Francione: it is irrational to
deny personhood to non-great apes, connecting closeness to genetic humanity
and the mental capacities that are common to humans with personhood is inconsistent
and it is possible to abolish the property status of non-human great apes as
an incremental step towards total abolition without using speciesist argumentation
that enforces hierarchy.[533]

Like Dunayer, Francione argued that the job
of the rights activist is to further the abolition of the property status of
non-human animals, the underlying cause of their exploitation. As discussed
above, Dunayer’s view that prohibitions that free non-human animals can never
leave them in a situation of exploitation ignores the incremental protection
of proto-rights that serves to protect non-institutional interests and chip
away at property status, as argued for by Francione. Of course, Francione is
in favor of prohibitions that completely remove non-human animals from exploitative
situations, as such prohibitions clearly satisfy his criteria and he suggests
the complete abolition of the egg industry. The remainder of Dunayer’s discussion
of prohibitions is a diluted reflection of Francione’s analysis.[534]

Dunayer contradicts herself when she both states
that abolitionist prohibitions do not leave non-human animals in situations
of exploitation and says that an example of this is a ban against leg-hold traps
within the fur industry. For, even with Dunayer’s suggested prohibition, non-human
animals will continue to be exploited for their fur with the use of spring-loaded
traps that hold them by the head or mid-section, closing-cage traps and battery
cages in fur “farms.” That is, Dunayer has suggested a prohibition against leg-hold
traps that substitutes one form of exploitation (leg-hold traps) for another
(head/mid-section traps and other methods) and leaves non-human animals in the
situation of being trapped and killed for their fur. Likewise for Dunayer’s
suggested prohibition of exotic non-human animals who are used for companionship.
A prohibition against the use of exotic or foreign non-human animals for human
companionship fails to protect native or local non-human animals. Using one
standard for foreign species and a different standard for local species is arbitrary
and speciesist. Moreover, a non-human animal who is “exotic” to one part of
the world is native to another. Thus, Dunayer’s suggested prohibition against
the use of exotic “pets,” if applied at the Federal level, would prohibit chipmunks
being used for companionship in Alaska but not Maine.[535] Again, this is arbitrary
and it leaves members of the same species of non-human animals in the same situation
of exploitation.

Dunayer’s observation that a legal prohibition
against the pig meat, egg and cow’s milk industries is currently impossible
because not enough of the public is vegan yet, and her subsequent suggestion
that veganism and boycotts be promoted, parallels Francione’s comment that it
is reasonable to conclude that attempts to eradicate the institutionalized exploitation
of animals through the law (which includes prohibiting animal product industries)
are currently inefficacious and veganism, protest, demonstrations, economic
boycotts and so on should be encouraged.[536]
Dunayer’s observation that boycotts against factory-“farmed” but not “free-range”
eggs and white but not red calf meat are not abolitionist echoes the same comments
made by Francione regarding proposed legal changes.[537]
Also, Dunayer’s discussion of a prohibition that does not include any welfarist
bargaining away of non-human animal rights, failing to state or downplaying
one’s true goal of an end to the non-human animal “agriculture” industry and,
her comments regarding a prohibition that generates public discussion about
rejecting the exploitation of non-human animals outright, is again borrowed
from Francione without any citation.[538]

Dunayer’s view that it is immoral to buy non-human
animals unless doing so would save them from suffering and death is problematic.
If one sees a malnourished or otherwise unwell puppy in a “pet” store, buying
the puppy in order to rescue her or him will instigate a chain of events beginning
with the store owner contacting the store’s wholesale supplier and ending with
more puppies being bred and exploited at puppy mills. Following Dunayer’s suggestion
would result in increasing economic demand for puppies who are sold in “pet”
stores as objects and cause more to suffer the same fate. Admittedly, this issue
is not clear-cut. Seeing a non-human animal who is suffering or near death and
coldly turning one’s back because a rescue-by-purchase would cause others to
be exploited, suffer and die in the future is also morally problematic. Dunayer’s
treatment of this issue, however, is oblivious to both of its highly morally
problematic features; she categorically holds that buying non-human animals
to save them from abuse or death is part of a vegan lifestyle.[539]

Lastly, Dunayer argues that killing a non-human animal to avoid
starvation is not speciesist and does not violate the non-human animal's right
to life:

I have an equal right to lifeIt isn’t speciesist
to value some individuals (nonhuman or human) more than others. … If I’m
starving in the Arctic, I’m entitled to kill and eat a polar bear, but I’m
also morally entitled to kill and eat a human. In such rare circumstances
a human’s right to life genuinely competes with someone else’s equal
right to life. If I have no other food source, I – like a polar bear – must
kill prey if I want to survive. There’s nothing speciesist about that.[540]

It may not be speciesist, when starving without
any other option, to murder and eat either a human or a non-human animal with
equal disregard, but it certainly is fundamentally immoral. Francione examines
the classic legal case of Regina v. Dudley and Stephens, in which four
men were stranded in a lifeboat without food or reasonable hope of rescue. Two
of the men killed and ate a third man against his protests. After being rescued,
the killers were convicted of murder by the Queen’s Bench based upon the Court’s
findings. The Court found that there is no “absolute and unqualified necessity
to preserve one’s own life.” The Court asked, “Who is to be the judge of this
sort of necessity? By what measure is the [equal] comparative value of lives
to be measured?”[541] Apparently, Dunayer is the
judge and the measure is might makes right. While a polar bear has no capacity
to make abstract, reasoned moral decisions and any moral sacrifice that might
stem from such decisions, most human animals do have that capacity. To kill
another in order to benefit oneself is the essence of what it means to violate
a basic right. If I were in such an extreme emergency situation and decided
to kill another sentient being, human or non-human, in order to save myself,
I would be intensely aware at the time that what I was doing was fundamentally
immoral, and that it would be entirely justified if I were convicted of murder
afterwards. I would like to think that I would have the moral courage not to
murder someone if faced with starvation. Apparently, Dunayer has no such scruples.

Whether or not Speciesism satisfies the criteria
contained within the legal definition of “plagiarism” is not for me to say.
The reader of Speciesism, Francione’s books and articles and this review
must consider all three of these sources and judge for her or himself based
upon the evidence. The following, however, gives one pause.

2004 Dunayer without reference to Francione:

U.S. law is even more speciesist than the U.S. public. Most U.S. residents
believe that it’s wrong to kill animals for their pelts, but the pelt industry
is legal. Most believe that it’s wrong to hunt animals for sport, but hunting
is legal. Two-thirds believe that nonhumans have as much “right to live
free of suffering” as humans, but vivisection, food-industry enslavement
and slaughter, and other practices that cause severe, prolonged suffering
are legal.[542]

2000 Francione:

There is a profound disparity between what we [the public] say we believe
about animals, and how we actually treat them. On one hand, we claim to
treat animal interests seriously. Two-thirds of Americans polled by the
Associated Press agree with the following statement: “An animal’s right
to live free of suffering should be just as important as a person’s right
to live free of suffering.” More than 50 percent of Americans believe that
it is wrong to kill animals to make fur coats or hunt them for sport. …
On the other hand, our actual treatment of animals stands in stark contrast
to our proclamations about our regard for their moral status. We subject
billions of animals annually to enormous amounts of pain, suffering and
distress. …we kill more than 8 billion animals a year for food … Hunters
kill approximately 200 million animals in the United States annually… we
use millions of animals annually for biomedical experiments … And we kill
millions of animals annually simply for [fur] fashion.[543]

2004 Dunayer without reference to Francione:

“Welfarists” seek to change the way nonhumans are treated within some
system of abuse. They work to modify, rather than end, the exploitation
of particular nonhumans.[544]

1996 Francione:

Both [welfarists] Spira and PETA … seek to effect change within the
system. This inevitably requires the acceptance of reformist measures…[545]

2004 Dunayer without reference to Francione:

…new speciesists endorse basic rights for some nonhuman animals, those
ostensibly most similar to humans.[546]

2000 Francione:

[The work of (speciesist) cognitive ethologists] is also dangerous
in that it threatens to create new hierarchies in which we move some animals,
such as great apes, into a “preferred” [personhood-rights] group based on
their similarities to humans, and continue to treat other animals as our
property and resources.[547]

2004 Dunayer without reference to Francione:

We consider it immoral to treat any human, whatever their characteristics,
as property.[548]

2000 Francione:

We do not regard it as legitimate to treat any humans, irrespective
of their particular characteristics, as the property of other humans.[549]

All of this is not to say that two authors, working separately,
cannot arrive at similar lines of thought and derive similar conclusions independently.
Innocent coincidences do happen. Given that Dunayer cites all of the major and
several of the minor works of Francione, however, it is clear that she is highly
familiar with Francione’s ideas. In my view, the repeated and systematic way
in which Dunayer appropriates and misrepresents these ideas, as exposed in this
review, cannot be explained by coincidence alone. It is not for me to say what
the explanation for this state of affairs is, but whatever it is, exposing the
situation is important so that proper credit and representation can be given
to a moral and legal theory, and a method of effecting political change, that
has the power to radically transform human society into one that respects the
basic rights and personhood of non-human animals: Francione’s Animals, Property
and The Law, Rain Without Thunder and Introduction to Animal Rights
are absolutely invaluable to the theorist and activist alike.

[1] Although Dunayer discusses the views of Steve F.
Sapontzis, Tom Regan and others, her main source is Francione. It is the author’s
contention that the animal rights theory of the latter constitutes one of
extremely rare consistent scholarly positions on the subject. For these two
reasons, this review will focus upon Dunayer’s treatment of Francione.

[5] As an animal rights philosopher and non-violent
activist, I have written this review for two reasons. First, exposing the
appropriation of Francione’s work is important because, both prior
to and after Francione’s work, publications by other authors on the subject
of “animal rights” fall far short of being consistent with what rights theory
actually requires, as understood by moral philosophers past and present. So,
regarding Francione’s development of genuine animal rights theory, credit
should be given where it is due. More importantly, the second reason for this
review is that exposing the misrepresentation of Francione’s views
and supporting arguments has significant practical implications for the future
plight of non-human animals. If the exploitation of non-human animals is to
cease, the activists who bring about this result will have necessary been
informed by a consistent, well-supported theoretical framework that was readily
and effectively applied to practical situations. In short, the misrepresentation
of Francione’s work does not do non-human animals any favors.

[7] If one fails to treat a human animal with
equal moral consideration of interests and respect because that human animal
lacks traits that are prevalently associated with non-human animals (or possesses
traits that are prevalently associated with human animals) one has committed
a speciesist act. For example, if one advocates that certain human animal
prisoners, but no non-human animals, be the unconsenting subjects of vivisection
due to the mere fact that they are human (or because human animals as a general
class oppress non-human animals), then one has failed to respect and accord
equal moral consideration of interests to those humans due to a morally irrelevant
quality; their species. Dunayer’s definition fails to capture this instance
of speciesism. Moreover, if a human animal is equally likely to harm a human
or non-human animal as a result of an irrational fit of anger
(not the individual’s species nor the likelihood of legal consequences),
such harm falls within Dunayer’s definition but is clearly not an instance
of speciesism. The perpetrator in this case harms human and non-human animals
alike without any regard, in attitude or practice, for their species. Thus,
perhaps a better definition of speciesism than Dunayer’s is “a failure, in
attitude or practice, to accord any sentient being equal moral consideration
of interests and respect due to that being’s species or having characteristics
that are generally associated with a particular species.” Indeed, the fact
that Dunayer limits her definition to non-human animals alone entails that
it necessarily excludes the equal consideration and respect of one group (homo
sapiens) purely on the basis of their species; a fact that arguably entails
that Dunayer’s definition of “speciesism” is, itself, speciesist.

[12] Although Francione does discuss the immorality
of killing and harming human animals who lack abstract reason, language and
so on and compares this with the immorality of killing non-human animals who
also lack those qualities, he places this discussion within the context of
a much broader argument that refers to the contradiction between the widespread
acceptance of the humane treatment principle and the widespread violation
of this principle in practice. As such, Francione does not employ the argument
from marginal cases since his comparisons of “marginal” humans and non-human
animals do not lead to any conclusions unless they are first placed in the
context of Francione’s wider argument. Although Sztybel’s thesis (note 11
above) both refutes the argument from marginal cases and could be used to
refute Francione’s theory, Sztybel’s thesis has less claim over the latter
because Francione’s theory is founded upon axioms that are generally accepted
and Francione does not purport to further justify those axioms with abstract
meta-ethical theory. In short, Sztybel’s thesis is for academic moral philosophers
whereas Francione’s theory is for the people and is thus founded in common
sense. Admittedly, common sense regarding the widely held moral principles
that Francione discusses may be open to philosophical scrutiny, but Francione
readily acknowledges this. See: Francione, Introduction to Animal
Rights, op. cit., pp. xxxiv-xxxvi.

[33] Whenever I say that Dunayer makes a rhetorical
suggestion, I am referring to her use of certain linguistic devices such as
asking a question that either answers itself or, given its context, strongly
implies an answer. Other rhetorical devices include, but are not limited to,
constructing an argument in which the conclusion is assumed but unstated and
using paired examples in which an instance of the morality of not treating
one entity in a certain way is placed within a context which discusses a second
entity (without necessarily explicitly stating that the second entity is in
fact subject to the treatment under discussion), thus provoking the inference
that treating the second entity in that way is immoral.

[44] Gary L. Francione, Rain Without Thunder: The
Ideology of the Animal Rights Movement (Philadelphia: Temple University
Press, 1996), pp. 49-54.; Francione, Introduction to Animal Rights,
op. cit., p. 135. Francione argues, incorrectly in my view,
that Bentham and Singer are at least rule utilitarians when it comes to the
question of not using human animals exclusively as resources and this is tantamount
to giving them a basic right not to be so used. For my critique of this point,
see: Jeff Perz, Core Self-Awareness and Personhood (Hamilton,
Ontario: McMaster University, 2003), pp. 76-81.

[161] Francione first explains the concept of equal
inherent value through its application to human animals. He does this, in
my view, because readers who do not yet accept that non-human animals have
rights will nevertheless be open to understanding and agreeing with the concept
of equal inherent value as applied to human animals. After this understanding
and agreement is achieved with respect to human animals, Francione goes on
to apply equal inherent value to all sentient beings. See: Francione,
Introduction to Animal Rights, op. cit., pp. 96-100.

[169] “For example, I have absolutely no doubt that
dogs are self-aware, intelligent beings who have a sense of the future and
an interest in continuing life. Although I am certain that death is a harm
for the dog, I do not know exactly what goes on in the mind of the dog and,
therefore, I cannot fully appreciate what is at stake for a dog were she to
die. I also lack direct access to the minds of other humans, but I am more
confident that I understand better the harm of death to humans and what is
at stake for them. I may, then, in true emergency situations, in which I am
forced to choose between a human and a dog, choose the human simply because
I better understand what is at stake for the human than I do for the dog.
But this is a matter of my own cognitive limitation and how that plays
out in these extreme circumstances in which my decision will necessarily
be arbitrary to some degree and in which no decision will be perfectly satisfactory.
I do not think that death is a greater harm to the human than it is the dog,
but I understand (or think I do) the harm to the human in a clearer sense
than I understand the harm to the dog; it is on this admittedly arbitrary
and unsatisfactory basis that I break the tie between two beings, both of
whom hold a basic right not to be treated as resources. But my decision to
favor the human does not mean that I am morally justified in using dogs in
experiments or otherwise treating dogs exclusively as means to my ends.” (Francione,
Introduction to Animal Rights, op. cit., p. 159. Emphasis
added.) Francione offers other examples of non-speciesist factors as well.
See: Francione, Introduction to Animal Rights, op. cit.,
pp. 159-160.

[172] “But put aside the dog for a moment. If we were
faced with a situation in which we could save our child or the child of another,
almost all of us would save our own child. Imagine that your child needs a
kidney. There is one kidney available, but another child has a more acute
need for the kidney. The other child will die in a matter of days if she does
not receive the kidney; your child will be able to survive for several months,
and another kidney may or may not become available. You are asked to choose
which child will get the kidney. Is there any reader who would not choose
to save her own child over the other, more needy child? Indeed, most of us
would sacrifice just about any number of other humans in order to save our
own child. So then, the fact that we would be willing to use a dog to save
our child does not tell us much of interest.” (Francione, Introduction
to Animal Rights, op. cit., pp. 152-153.) Furthermore, as
Francione argues, it would also not justify vivisection on dogs or mean that
dogs do not have equal inherent value. See: Francione, Introduction
to Animal Rights, op. cit., p. 159.

[187] Gary L. Francione, “Comparable Harm and Equal
Inherent Value: The Problem of the Dog in the Lifeboat,” Between the Species,
Heading: “Harm as an Empirical Matter, ‘Routine’ Subordination, and
the ‘Exceptional’ Case.”—Introductory Remarks AND part (a).

[332] i.e. there are no additional factors in the
situation that would mitigate the analysis that Blair is using Alex merely
as a means. For example, a mitigating factor might be that Alex is mentally
incompetent to make abstract moral decisions.

[338] Dunayer, Speciesism, op. cit.,
p. 178 note 17 says: “Francione, Introduction to Animal Rights, 165,
155.” For the issue in question, Francione’s comments on page 165 are merely
a brief summary of his view, which is more fully explained on page 155.

[339] Deer “overpopulation” refers to a situation
in which there are more deer than can be sustained by the available food in
a given area. Likewise, human overpopulation refers to our present circumstance
of there being six billion human animals whose population is expanding exponentially,
on a planet with finite resources and a fragile environment. See: Francione,
Introduction to Animal Rights, op. cit., p. 155.

[373]Ibid., pp. 59-60. Similarly, Dunayer
rejects a Swiss law requiring that hens who are used for their eggs be exploited
in cages that have at least 124 inches of floor space, which has the effect
of replacing the cages with an alternative and profitable form of confinement.
See: Ibid., pp. 68-69.

[386] Dunayer does not explicitly state that welfarists
who claim that welfarist regulations result in the property status of non-human
animals being eroded (something that rights campaigns do) and do not use terms
such as “humane” use rights language, but the forgoing context strongly suggests
that this is the case.

[401] i.e. the removal of food, water and light at
the end of the period during a hen’s lifecycle when she lays the most eggs,
thus forcing her body into one last egg-laying cycle before she is killed.

[482] Francione discusses standards regarding the
provision of water not constituting prohibitions both generally and with respect
to vivisection whereas Dunayer discusses the same point within the context
of forced moulting.

[494] “This criterion admits of degrees insofar as
the ‘significance’ of the difference between the costs imposed on property
ownership and the benefits reaped by property owners will vary. Many proposed
reforms will add costs to property ownership, costs that represent recognition
of a noninstitutional animal interest, but many of these costs may be trivial.
For example, [in the previously rejected proposal to reduce the number of
hens in a battery cage from four to three], the removal of one bird from the
battery cage may be proposed for ‘moral’ and not economic reasons (i.e. the
property owners, if completely rational [in pursuing self-interest] but left
to their own devices, would not institute such a change), but it is still
questionable whether the proposed change is ‘significant’ or is so trivial
that its acceptance might constitute cost-effective appeasement offered by
property owners to placate moral sentiment in favor of animals.” (Francione,
Rain Without Thunder, op. cit., p. 202.) Since Francione
previously rejected this proposal, he obviously maintains that the economic
costs that the proposal imposes are trivial and therefore the proposal not
satisfy the third criterion for an abolitionist measure.

[516] Dunayer makes a similar objection using different
examples. Dunayer states that Francione does not categorically reject
pursuing a prohibition on dehorning cows who are used for their meat and a
prohibition on footpad injections in rats who are used in vivisection whereas
Dunayer does reject these prohibitions because they leave the non-human animals
in situations of exploitation and their exploiters will achieve their goals
by using other, perhaps worse, methods. (Dunayer, Speciesism, op.
cit., pp. 70-71.) Francione, however, makes clear that prohibitions
on dehorning cows and injecting the footpads of rats arguably protect non-human
animal “interests that go beyond those necessary to ensure that animals are
fit for the type of exploitation at issue and its prohibition is not accompanied
by a substitution of other forms of exploitation. … In both examples above,
the prohibitions recognize interests that would be recognized were the animals
not property at all.” (Francione, Rain Without Thunder, op.
cit., pp. 214-215.) In other words, just as Francione argues that a
prohibition on battery cages – that succeeds in fully protecting the interest
of hens in freedom of movement at significant financial detriment to their
human owners – results in a piece of the hens’ property status being eradicated
in an incremental fashion, so too could prohibitions on dehorning and footpad
injections completely protect non-institutional interests without substituting
alternative forms of exploitation. As previously discussed, if a prohibition
(e.g. on dehorning or footpad injections) failed to fully protect a non-institutional
interest or, as Dunayer charges, substituted an alternative form of exploitation,
then the prohibition would not satisfy Francione’s stringent abolitionist
criteria. As such, Francione would reject these prohibitions.

[517] For example, a human slave whose hands were
cut off could never have her or his right to bodily integrity and freedom
of movement fully respected.